SMART GUNS ARE NOT A SMART IDEA!

Stephen L. D’Andrilli, on behalf of the Arbalest Quarrel, a weblog devoted to educating the public on the meaning of State and federal firearms’ legislation, will attend “The New York City Smart Gun Symposium.” The Symposium will be held at the Brooklyn Borough Hall on August 2^nd, from 11am to 2pm. The address is: Brooklyn Borough Hall 209 Joralemon St, Brooklyn, NY 11201.Stephen D’Andrilli looks forward to joining the discussion. Stephen knows gun issues. He is happy to explain the Arbalest Quarrel’s position on “smart guns” and is available to answer questions participants in the Symposium may have about Arbalest Quarrel’s position on smart guns.Expecting questions the Arbalest Quarrel presents the following paper, directed to the politics behind the antigun establishment’s push for smart guns.

THE ARBALEST QUARREL’S POSITION ON “SMART GUNS”

Among the latest restrictive gun proposals are those involving adoption of so-called “smart guns”—the subject of this symposium. But, when considering adoption of smart guns—or any restrictive gun proposal—we must not lose sight of one important fact. Antigun ideologues shape thoughts, impressions, and beliefs about guns through propagation of lies. They broadcast lies to the masses through meaningless sound bites, repeated constantly through the mainstream media. Take the expression, ‘smart gun.’ The expression, ‘smart gun,’ is a derivative of the coined word, ‘smart phone’ and, not improbably, ‘smart bomb.’ Antigun ideologues seek to create an impression about smart guns that is at odds with the truth about them.But, what is a smart gun? NRA explains. “Conceptually, a ‘smart’ gun is one that incorporates technology that would prevent the gun from being used by an unauthorized person. Currently, no viable guns equipped with such technology exist.”Apart from technical matters relating to the production of smart guns, we must not lose sight of the political motivations percolating around smart guns.The expression ‘smart gun,’ as created and employed by antigun ideologues, is a meme, a mental virus. But what does the expression, ‘smart gun,’ suggest?Adding the adjective ‘smart’ to the noun, ‘gun,’ suggests to the mind—as those who coined the word and thrust it on the public consciousness, hope and obviously intended—that application of so-called smart gun technology to gun manufacturing makes a firearm in some sense better.To the antigun ideologue any gun that is not a ‘smart gun’ is, ipso facto, a ‘dumb’ gun. They don’t say this. That is implied. Consider why would someone want a simple, dumb phone, when one could do more with a smart phone? Similarly, who would want a dumb gun when a person can own and possess a smart gun? What kind of a firearm would any sensible person want if a person wishes to own and possess a firearm at all? Would that person want a smart gun or a dumb gun? These are the tacit questions posited by antigun ideologues.But, we must first ask: does adoption of smart technology to the production of guns truly produce a better gun? If so, in what way? We might analogize smart guns to smart phones. But the analogy between a smart phone and a smart gun is a false one. A user of a smart phone prefers a smart phone to a phone that does not incorporate smart technology because smart phone technology incorporates more features that its users want. But, with gun technology, the user isn’t looking for a device with multiple features and capabilities. In fact, simplicity generally, if not invariably, is preferred to complexity in gun technology.Of course, all guns employ technology of some sort. Firearms are technological instruments: from the earliest wheel locks and flintlocks to modern revolvers and semiautomatic weapons. But, if firearms don’t employ the new “smart” technology, they are deemed unsophisticated.The idea conveyed is that unsophisticated guns employ dumb technology. But, dumb in what sense? Are such guns dumb, as the proponents of smart guns may argue, because such guns are deemed unsafe? But, unsafe in what way? In what manner? And, unsafe to whom and under what circumstances? Antigun ideologues consider safety from the standpoint of preventing unauthorized use of firearms. That is one context. There are others.Are smart guns safer in handling or in operation, say, than guns that do not incorporate smart technology? Might not a smart gun, in an emergency, be unsafe where a dumb gun is safe? Suppose a law-abiding citizen and gun owner finds his smart gun failing to work in an emergency. Or suppose that, for the smart gun to work, the gun owner must engage multiple operations. Can the antigun ideologue continue to maintain justifiably, rationally, that the smart gun is after all a safe gun—as if safety, in one context—preventing unauthorized use of the gun—has overriding significance even if the gun doesn’t work at a time when the authorized gun owner needs the gun to work or if the smart gun requires the authorized gun owner to know the intricacies of his or her smart gun—at a time when the gun owner is in a stressful situation and is counting on the gun to work?      In some contexts, at least, the smart gun is truly the dumb gun and the dumb gun is really the smart gun. The antigun ideologue ought not to be surprised that the law-abiding gun owner places more assurance in, say, his or her stock Smith and Wesson revolver handgun or in his or her stock Glock semiautomatic pistol.The point is that a gun has little if any use if it isn’t reliable and if it can’t be utilized immediately and easily in an emergency.Reliability and ease of use of a device—any device—is certainly at least as important as safety. For, if a device isn’t reliable, of what use does it have. And, if a device isn’t easy to use—that is to say, if the device requires multiple gyrations on the part of its user before the user gets it to work—won’t that user prefer a simpler device.It isn’t coincidental that smart gun technology is being pushed on the public by those who oppose guns in civilian hands. Let’s not be coy about this. Antigun ideologues don’t want civilians to own and possess any gun. This is no secret. They’ll tell you that.Antigun ideologues push smart gun technology on the ground, as they argue, that smart guns are better guns than ordinary guns—dumb guns—that don’t incorporate smart technology. But that doesn’t mean antigun ideologues think smart guns are as reliable as dumb guns or that smart gun technology allows for ease of use.The word, ‘better,’ doesn’t necessarily imply ‘reliability’ or ‘ease of use.’ Antigun ideologues don’t know if smart guns are as reliable as guns that don’t incorporate smart technology. Indeed, they don’t know if smart guns are reliable at all. Frankly, they don’t care; nor do they care that smart guns are more intricate than guns that don’t incorporate the smart technology; nor do they care whether smart guns happen to be more difficult to operate than guns that do not incorporate the smart technology.Antigun ideologues’ aim is to render a gun inoperable if the gun falls into the wrong hands. That is what they want from a gun. That is the only thing they want and expect from a gun. Unfortunately, the concern of antigun ideologues does not extend to issues of reliability and ease of use for the authorized user—which are concerns certainly of importance to the authorized user. But, then, antigun ideologues are not individuals who seek to own and possess firearms. So, they would prefer that guns were merely props—unworkable devices, incapable of use by anyone.You will note that antigun ideologues don’t suggest that police and the military adopt smart technology in the weapons they use. Why is that? And, you don’t hear police departments and the military clamoring for the adoption of smart guns for their personnel. There is obviously a good reason for that.Now, antigun ideologues will invariably argue that the needs of the police and military differ from the needs of civilians. Regardless, one would expect, at the very least, that one’s firearm is reliable for the need at hand and allows for ease of use—no less so for the civilian than for the police officer and for the soldier.But antigun ideologues oppose civilian gun ownership on multiple grounds, including aesthetics. They argue that guns in the hands of civilians are unnecessary, unwholesome, dangerous, and even evil if one can legitimately call an inanimate object, “evil.”They seek to impose draconian gun laws, including application of unproven smart gun technology, on millions of rational, law-abiding, responsible gun owners. They wish to restrain and constrain the sacred right of millions of sane, rational, responsible law-abiding gun owners due to the reprehensible actions of criminals, lunatics, and terrorists among us who are routinely treated by the Obama Administration with “kid gloves.”Why should government be in the business of imposing smart gun technology on the public at all? If smart gun technology is to become commonplace in society, then that should come about because the gun buying public prefers it, even demands it. But demand or preference for a product or service in a capitalist society operates through the free market economy. If the gun-buying public wishes to own and possess smart guns, gun manufacturers will produce them. But government should not force gun manufacturers to manufacture guns they do not wish to make. And government should not restrict the buying options of the public to those firearms the public doesn’t wish to buy.Application of smart gun technology to firearms is not something law-abiding citizens who own and possess firearms want. It is, rather, something the Obama Administration—and antigun ideologues, who have no desire to own and possess a firearm themselves—seek to thrust on everyone else.Adoption of smart gun technology is not market driven; it is politically driven, based on personal bias, motivated by one segment of society’s personal agenda.If Americans wish to own and possess guns as is their natural right, as codified in the U.S. Constitution, on what legal ground—irrespective of personal morality, political ideology, aesthetic sensibility, or social consideration—might Congress or the State legislatures rely if they seek to compel Americans either to accept ‘smart gun’ technology or surrender—eventually and inevitably—their Constitutional right to possess firearms at all?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

HILLARY CLINTON MUST BE INDICTED AND HERE’S THE JUSTIFICATION FOR IT.

HILLARY CLINTON EXEMPLIFIES CORRUPT LEADERSHIP AND THE AMERICAN CONSTITUTION SUFFERS BECAUSE OF IT

Joseph smiled his tight and bitter smile. ‘What does any man, in his heart, really want? Power. Hypocrites scream ideologies and slogans to gain it over the gullible and what I like to call the “pure in hearts.” But my—friends—have no ideologies though they will solemnly use those of others if it serves them. They are men of many interests, politicians, merchant chiefs, mine owners, industrialists, bankers, railroaders, oilmen, shipbuilders and owners, munitions makers, men of inherited wealth, shipbuilders and owners, munitions makers, men of inherited wealth, men of illustrious family both here and abroad, princes, if you will. Landowners. They have several things in common: None is devoted to his particular country. None cares about the people’s welfare in any nation. All are avaricious, beyond the avarice of the general public to comprehend. All are sublime egotists. All are enemies of what you would call freedom. They want to rule, each in his own sphere, cooperating with the others. They want to be the Elite, with absolute authority over the lives and deaths and destinies of the world. At heart, they are all Robespierres, Dantons, Mirabeaus, Jacobins.” Excerpt from Captains And The Kings, (published 1972), by Taylor Caldwell, Chapter 31One thing is clear and irrefutable. Hillary Clinton is unfit to be President of the United States. However you slice and dice it, a substantive F.B.I. investigation into Clinton’s conduct as Secretary of State is sufficient reason to strike her name from consideration as a viable candidate for U.S. President. Failure of the F.B.I. Director, James B. Comey, to recommend indictment of Hillary Clinton on federal criminal charges is second to the import of the investigation itself and what the investigation uncovered. The mainstream media doesn’t even mention the impact a criminal investigation into the conduct a Cabinet level Official ought to warrant. Instead, the mainstream media focuses solely on the Director’s decision. The mainstream media has sought, in recent years, to distract the public, not to inform it. Why is that?Moral failures galore exist here. Hillary Clinton should have had the good sense and decency to drop out of the race. She could and should have done so for the well-being of the Country and for the sake of the American People. She did not. That she failed to do so, the Democratic Party should have demanded she drop out of the race. The Party did not.The F.B.I. Director, James B. Comey, should have followed his reason and recommended indictment of Hillary Rodham Clinton on federal criminal charges. He did not. The Attorney General, Loretta Lynch should have indicted Hillary Clinton, regardless of the F.B.I.’s recommendation. She could have done so. She did not.The sitting President of the United States, Barack Obama, should not be campaigning on behalf of Hillary Clinton—regardless of Comey’s decision not to recommend indictment—given the sheer volume of the evidence against her and its dire nature. Instead he campaigns on her behalf, standing at her side.Bernie Sanders should have withheld his endorsement of Hillary Clinton. He endorsed her anyway, to the chagrin of millions of Americans who placed faith in him.

THE DANGER POSED BY A CLINTON PRESIDENCY

Supporters of Hillary Clinton, including the present U.S. President, and, recently, U.S. Senator, Bernie Sanders—along with Hillary Clinton’s retinue of image makers—portray Clinton as something she is not, never was, and, never could be—someone who cares about the well-being of this Nation; someone who would defend the Bill of Rights.Supporters of Hillary Clinton portray her as one concerned over the plight of millions of illegal aliens. But these illegal aliens, having snuck across our borders, have no legitimate right to remain here. They portray Hillary Clinton as someone concerned over the plight of Americans—Americans who seek constant handouts from the Federal Government. Yet, her supporters ignore the tax burden those Americans place on millions of other Americans who take responsibility for their own actions, for their own lives. They portray Clinton as someone concerned over the plight of disaffected Islamists from the Middle East whom she would bring to this Country in droves. Yet they ignore the threat posed by radical Islam—a threat that isn’t lost on anyone here or abroad.Hillary Clinton’s image makers portray Hillary Clinton as a Savior. She is nothing of the kind. Hillary Clinton feigns service to this Nation. She serves only herself and those seditious, treacherous interests that lurk in the shadows. She pretends to vouchsafe our rights and liberties. But she would destroy them. Freedom of speech would be curtailed. The right to keep and bear arms would be obliterated. Americans right to privacy would continue to be invaded, even as Clinton’s own actions would be cloaked in perpetual secrecy.

WHY HAS A LIKELY CRIMINAL EVADED A PROPER ACCOUNTING FOR HER ACTIONS?

People may speculate on Comey’s reluctance to recommend indictment of Hillary Clinton on federal criminal charges. His failure to do so is sinful. His failure to do so has resulted in a cascade of sins committed by others.Comey’s damning litany of Hillary Clinton’s criminal conduct as Secretary of State screams out for her indictment. James Comey’s arguments against recommendation—when juxtaposed with the evidence for indictment outlined in his July 5, 2016 public statement to the American people—are lame and paltry, perhaps deliberately so. Was Comey telling the American People, though obliquely, that both he, and the Bureau and, by extension, the entire Justice Department, have been compromised? Possibly.

WHAT MIGHT CONGRESS DO?

What can Congress do to right a grievous wrong? Over three decades ago, Congress enacted laws to appoint independent counsel—often referred to as ‘special prosecutors’—to lead investigations into the wrongdoing of officials at the highest levels of government.The Arbalest Quarrel commenced a study of special prosecutorial appointment—the history behind it, the reasons for it, and the present status of it. The Arbalest Quarrel undertook this study to determine whether, through appointment of a special prosecutor, having independent authority, he or she might undertake a new investigation of Hillary Clinton’s bizarre conduct. This is necessary because of the Justice Department’s reluctance—for whatever reason—to “mete out justice.”A special prosecutor would undertake a review of the F.B.I.’s files. A special prosecutor and his team would have complete access to those files. A special prosecutor and his team would be unbound by the conclusions reached and decisions made by the F.B.I. Director and by the Attorney General. A special prosecutor and his team would operate independently of and beyond the reach of any Executive Department Official, including that of the U.S. President.A special prosecutor and his team would wield subpoena power and use of that subpoena power would be unconstrained. A special prosecutor would answer only to Congress.Specifically, a special prosecutor and his team would undertake an independent investigation of Hillary Clinton’s dubious activities as Secretary of State under Barack Obama. Both he and his team would investigate Clinton’s use of private email servers to conduct official Government business. Both he and his team would investigate foreign governments gaining access to that information. Both he and his team would review anew Hillary Clinton’s true motives behind her use of private email servers to conduct official Government business.A special prosecutor and his team would attempt to answer several important—even imperative—questions. Did Hillary Clinton’s use of private emails servers bespeak an intent to hide her activities from the American public? If so, that demonstrates intent to mishandle classified Government information, negating James Comey’s conclusion that Hillary Clinton did not intend to mishandle classified Government information. Why did Hillary Clinton destroy official Government records? James Comey made plain she attempted to destroy Government information. That she did so also demonstrates intent. Did she do this to avoid having Government information, pertaining to her actions as Secretary of State, deposited in the National Archives? If so, why? Did she do this to avoid having her activities recorded for posterity? If so, why? Was she aware, perhaps, that her policy decisions were contrary to the well-being of our Nation and to its People? If so, that would explain why she sought to use private email servers—even at the risk that such servers could not be properly secured—giving hackers relatively easy access.The special prosecutor and his team would review anew Hillary Clinton’s decision to lie to the F.B.I. and would string together the nature of those lies. The special prosecutor and his team would review anew the true purpose behind the Clinton Foundation. Is the Clinton Foundation a “front?” From whom did the Clinton Foundation receive and accept tens of millions and even hundreds of millions of dollars? Have some come from foreign governments and from wealthy, powerful individuals both at home and abroad? If so, have those governments and individuals paid the Clintons, through the Foundation, exorbitant monies to influence U.S. foreign and domestic policy? If so, has this influence peddling influenced foreign and domestic policy? Do the Clintons have sway over Obama? Have both Hillary and Bill Clinton attempted to cover up their Foundation’s activities from the American People?Have foreign governments hacked into Hillary Clinton’s private email servers? If so, have foreign governments obtained insight into State Department and Executive Office foreign policy analyses and decisions.Consider, did Russia’s President, Vladimir Putin, enter the Mideast conflict, defending Bashar al-Assad’s regime, on the basis of information gleaned from Hillary Clinton’s private email servers? Were Hillary Clinton to become the 45^th President of the United States, would she commence use of private email servers again? If so, who in Government could stop her? Who, in Government would even know she was using private email servers to conduct Government business, at the highest level of Government?Clearly, the activities of the Executive Branch of the U.S. Government are suspect. Recent pronouncements from the mouth of a U.S. Supreme Court Justice in the Judicial Branch, Ruth Bader Ginsburg, cast aspersions on that Branch too. Ginsburg’s assertions against a candidate for U.S. President are unprecedented and inappropriate. Both the tone of those assertions and the mere fact of them should give Americans pause.On the basis of independent review of F.B.I. files and on the basis of new discovery, Congress may be in the position to answer many critical questionsNever in our history have we faced the prospect of a person gaining access to the highest Office in the Land under a cloud of suspected criminal activity. Sure, past U.S. Presidents and our present U.S. President have acted in ways that draw serious attention to the legitimacy of their actions. But, never have the American people suffered the possibility of a dubious character occupying the highest seat in the Land, before the fact. This is an outrage to every American voter.  What can Congress do? In the past Congress relied on independent counsel, removed from the Executive Branch of Government and, therefore, beyond the influence of Government officials.

THE HISTORY OF SPECIAL PROSECUTORS*

Using special prosecutors had its birth in the 1970s, during the “Watergate” era. The Office of the U.S. President had become increasingly powerful. Congress sought to check abuses of the President. Congress feared encroachment of an “Imperial Presidency” with immunities and powers that had grown excessive and unchecked. To place a measure of control on the Presidency, Congress enacted several laws to give Congress oversight over the Chief Executive. One of those and of great importance here is The Ethics in Government Act of 1978. This Act authorizes independent special prosecutors to investigate and prosecute crimes by high officials.”The Department of Justice challenged this Act and other companion Acts when Congress first proposed the Ethics in Government Act of 1978. Through, the years, the Department of Justice has continued to challenge the Act.The Ethics in Government Act of 1978 Act has had a tumultuous history. Bill Clinton’s Administration had originally supported the Act. But, when special prosecutors investigated five members of Bill Clinton’s Cabinet, pursuant to their authority under the Act, Clinton abandoned his support for it. So, once the Act came up for renewal, in 1999, the Act lapsed.

NO LEGAL MECHANISM EXISTS TODAY TO BRING TO JUSTICE CABINET LEVEL OFFICERS OF THE EXECUTIVE BRANCH WHEN THOSE CABINET LEVEL OFFICERS VIOLATE FEDERAL LAW AND THE DEPARTMENT OF JUSTICE--A DEPARTMENT THAT FALLS WITHIN THE EXECUTIVE BRANCH OF GOVERNMENT--IS EITHER UNWILLING TO ACT TO BRING THOSE CABINET LEVEL OFFICERS TO JUSTICE BECAUSE THOSE HIGH LEVEL OFFICIALS WITHIN THE JUSTICE DEPARTMENT ITSELF HAVE BEEN CORRUPTED OR THE JUSTICE DEPARTMENT IS UNABLE TO ACT BECAUSE HIGH LEVEL JUSTICE DEPARTMENT OFFICIALS HAVE BEEN PERSONALLY COMPROMISED.

Absent Congressional action, no legal mechanism exists today by which independent counsel, as special prosecutors, unconnected with the Executive Branch of the Federal Government, may investigate and prosecute corruption and felony crimes of those serving in the highest Offices of the Executive Branch. The U.S. Constitution doesn’t provide a framework for appointment of special prosecutors, and some legal experts question the constitutionality of their use.But, then, if the Executive Branch, overseen by the United States President, has exclusive and unfettered control over the administration of law, and if Cabinet level Officials, appointed by the President, break the law, it behooves Congress to take action if the Executive Branch cannot or will not do so. More to the point, if Justice Department Officials alone may investigate and prosecute crimes of Officials in Government, what can Congress do if those same Justice Department Officials—the principal prosecutors of crime and corruption in Government—have themselves been compromised and cannot do their jobs effectively?

WHERE DOES THAT LEAVE THE AMERICAN PEOPLE AND WHAT CAN CONGRESS DO TO RIGHT A GRIEVOUS WRONG?

Since the Justice Department refuses to indict Hillary Clinton on federal criminal charges—notwithstanding that evidence elicited by James Comey warrants indictment—indictment won’t proceed without Congressional action. Does Congress have the backbone to reauthorize The Ethics in Government Act of 1978 or enact another law like it?The paramount question of Constitutional law is this: Can Congress enact a law, allowing the Legislative Branch, itself, to appoint a special prosecutor? Would that law pass Constitutional muster? In other words, can the Legislative Branch of our Government lawfully take upon itself the administering of law if the Executive Branch is unwilling to do so or incapable of doing so? Would not Congressional administrating of law conflict with the Separation of Powers doctrine? The Separation of Powers doctrine mandates that all executive functions of Government emanate and operate from and through the Executive Branch just as all legislative functions of Government emanate and operate through the Legislative Branch of Government. The administering of law is an Executive function, not a Legislative one.The American People face a serious conundrum. How does this Nation deal with an Executive Branch run amok? The founders didn’t deal squarely with this question when they drafted our Constitution. They created no mechanism in the Constitution that allows for independent administrative review of Executive Department officials’ actions by Congress when Cabinet level Officials in the Executive Branch commit grievous wrongs, in contradistinction to their oath of Office.The founders of our Nation evidently didn’t consider that corruption in the Executive Branch could be pervasive. The founders of our Nation evidently did not truly believe the American People could be duped into electing, to the highest Office in the Land, a person of questionable moral character, a person capable of treachery, a person who not only is willing and able to commit a felony but who, most likely, has done so.We continue to explore these matters in forthcoming articles.________________________*The information provided in this section summarizes or paraphrases material obtained from the following two academic sources: “The Unitary Executive in the Modern Era,” 1945-2004, 90 Iowa L. Rev. 601, January 2005, Christopher S. Yoo, Associate Professor of Law, Vanderbilt University, Steven G. Calabresi, Professor of Law, Northwestern University, and Anthony J. Colangelo, Associate, Cleary Gottlieb Steen & Hamilton, LLP; and “The Constitutionality Of Independent Officers As Checks On Abuses Of Executive Power,” 16 U. Mich. J. L. Reform 45, Fall 1982, Donald J. Simon, Associate, Sonosky, Chambers, Sachse & Guido, Washington, D.C.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

HILLARY’S ‘SMOKING GUN’ CANNOT BE UNDONE

“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” ~ Thomas PaineLost in the moment of the Dallas shooting tragedy is the serious matter of Hillary Rodham Clinton’s mishandling of official Government information. Many are those who would excuse this conduct. Most citizens likely would not. No American should.As awful as the gunning down of police officers by a lunatic is to contemplate, our Country, a Sovereign Nation, grounded upon a system of laws and a Bill of Rights, can survive this tragedy and others like it. Police departments around the Country can cope with lunatics, criminals, and terrorists if politicians in Washington D.C. would not second-guess police officers’ actions and if they would restrain themselves from running roughshod over them, and let due process take its course.But, can this Nation cope with a renegade ex-Secretary of State occupying the White House? It is more than doubtful. If Hillary Rodham Clinton becomes the 45^th President of the United States, she will have the willingness and power to undermine the Constitution, more than any U.S. President in recent times, beginning with the Second Amendment. The scorn she holds for our Second Amendment is evident. The American People know exactly where she stands on gun possession and gun ownership in this Country.The damage she might do is not only limited by her determination and desires but by the powers she would wield as U.S. President. Those powers she would wield as President would be second to none. She would control the vast intelligence apparatuses, the military, and the federal police forces. She would mold public education and even exert control over mass media.Should Congress fail to yield to her devious determination, ex-Secretary of State Hillary Clinton, as United States President Hillary Clinton, would make law through executive fiat. Hillary Clinton has proved, time and again, she does not respect “the rule of law”—the bedrock of our Nation. Yet, we are a Nation grounded on the rule of law, as our founders intended. Our Nation is not grounded on rule by mere mortal men (or women).Mrs. Clinton’s behavior as Secretary of State makes up “Exhibit A” of her willingness to break the law. We see this through her obvious incompetency, through her disrespect for our Nation’s laws, and through the harm she would inflict on this Country—harm she would inflict on our Country with abandon and alacrity. Mrs. Clinton’s behavior as Secretary of State should serve as a warning to the American People. For, as she has operated as Secretary of State—as someone who perceives herself well above the law—so she will most certainly operate as President of the United States. Hillary Clinton’s actions as Secretary of State presage her actions as U.S. President.The mainstream media says F.B.I. Director, James B. Comey, determined—after investigating Hillary Clinton’s use of several private email servers to conduct official Government business—that Clinton committed no crime. The mainstream media says this because Comey told the American public, in his July 5, 2016 statement, that he will recommend, to the Attorney General, that no criminal charges be filed against Hillary Rodham Clinton.The mainstream media has it wrong. The mainstream media is misleading the public. The F.B.I. Director’s recommendation to the Attorney General not to indict Hillary Clinton on criminal charges does not, ipso facto, mean Hillary committed no crime. The F.B.I. Director, James B. Comey said no such thing, nor did he intimate any such thing. The F.B.I. Director said, in his July 5, 2016 statement to the American People, though tacitly, that Hillary Clinton did commit a crime; that she had, in fact, committed a crime continuously over several years. Further, the F.B.I. Director said, though tacitly, that Hillary Clinton’s conduct amounted to a felony—that she committed a felony repeatedly.The F.B.I. Director’s recitation of a long list of Hillary Clinton’s criminal misdeeds make these points abundantly clear. Cataloging Hillary Clinton’s misdeeds in a public statement for the American People is the primary purpose for the F.B.I. Director’s unprecedented public statement to the American People. Comey intended that such evidence of Clinton’s criminal misdeeds be made manifestly clear to the American People. The tacit question posed to the American People as implied through Comey’s recitation of Clinton’s criminal misdeeds is this: Is Hillary Rodham Clinton a person whom American citizens truly wish to represent both them and their Country?James Comey, F.B.I. Director, the top police official in the Land, intended for the American People to understand, full well, Clinton’s culpability for her actions. Contrary to some commentators’ remarks, Comey’s statement to the American People is not a political stunt. It isn’t grandstanding. The F.B.I. Director delivered his statement in deadly earnest.Comey sets out, clearly, cogently, comprehensively, categorically, and convincingly a litany of damning evidence against Hillary Rodham Clinton. Listening to Comey’s lengthy delineation of Hillary Clinton’s wrongful conduct as Secretary of State, one expects him to conclude with something like this:“I will make the following recommendation to the Attorney General: In the F.B.I.’s estimation, after conducting an extensive investigation of Hillary Rodham Clinton’s actions, in which she used several private email servers, exclusively and continuously over a period of years, to conduct official Government business, in her capacity as Secretary of State, a Cabinet level position, under the U.S. President, Barack Obama, the F.B.I. concludes that Hillary Rodham Clinton did in fact violate—either with actual knowledge of the wrongful, criminal nature of her actions and conduct in the handling of classified information, or through gross negligence in the handling of classified information—Section 793 of the United States Code, captioned, ‘Gathering, transmitting, or losing defense information,’ that falls under Chapter 37 of the United States Code, captioned, ‘Espionage and Censorship,’ of Title 18 of the United States Code, captioned, ‘Crimes and Criminal Procedure.’ As Director of the F.B.I., I, James B. Comey, do therefore recommend to the Attorney General that Hillary Rodham Clinton be indicted and prosecuted forthwith for the aforesaid federal crime, having forsaken her duty to the United States Constitution and to the American People.”But Comey made no such recommendation to the Attorney General. This much we know. This he made clear. To the contrary, after reciting a lengthy list of criminal misconduct by Hillary Clinton, Comey asserted, singularly incongruously, that he would recommend to the Attorney General that no criminal charges be brought against Hillary Rodham Clinton.The F.B.I. Director made this assessment of Hillary Clinton’s actions: She was “extremely careless” in her handling of classified Government documents. Still, notwithstanding his failure to recommend indictment of Hillary Clinton on criminal charges, the Director never said—nor did he imply—that Hillary Clinton had not committed a crime. The tacit conclusion to be drawn from the F.B.I. Director’s statement was that Hillary Clinton did commit a crime.Failure to recommend indictment is not equivalent to and is not indicative of an absence of criminal conduct; and, failure to recommend indictment does not entail lack of evidence of criminal conduct. In this instance, upon the cataloging of a laundry list of criminal misconduct on the part of Hillary Clinton, James Comey makes Hillary Clinton’s criminal conduct patently clear. So, then, why didn’t the F.B.I. Director recommend bringing criminal charges against Clinton? He said he wouldn’t recommend indictment because, as he asserted, he didn’t believe that, among other things, Clinton’s criminal actions were prosecutable. That is an odd declaration to make and one that Rudy Giuliani, former New York City Mayor and a former United States Attorney, took immediate exception with. Giuliani said he was “shocked” by James Comey’s conclusion that Clinton’s actions were not prosecutable.More shocking still was Comey’s testimony before Congress. For, two days later, on July 7, 2016, in sworn testimony before the United States House Committee on Oversight and Government Reform, James Comey seemingly retracted his tacit conclusion that, in his estimation, Hillary Clinton did break the law. For he asserted, clearly, categorically and unequivocally—in contradistinction to his earlier statement to the American public—that, in his estimation, Hillary Clinton didn’t break the law.There is an obvious disconnect between James Comey’s statement to the American public on July 5, 2016 and his testimony before Congress just two days later. Second, there exists an obvious disconnect between Comey’s litany of evidence supporting indictment of Hillary Clinton and the flimsy arguments he makes against it. Third, concerning whether Hillary Clinton lied to the F.B.I., there’s also a clear disconnect between Comey’s testimony in response to questions posed by U.S. Congressman, Jason Chaffetz, Republican-Utah, and Chairman of the Committee conducting the Hearing, and questions posed to James Comey by U.S. Congressman, Trey Gowdy, Republican-South Carolina, at the same Hearing.U.S. Congressman Trey Gowdy chairs the Select Committee on Benghazi. His worked helped bring Clinton’s criminal handling of classified Government information to light.But that isn’t all. Since Clinton had lied to the F.B.I., she has also violated another federal law: 18 U.S.C. § 1001, which sets forth in pertinent part,“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years . . . or both.” So, there exists a basis to indict Clinton under federal Statute, apart from the matter of her mishandling of classified Government information. She lied outright to the F.B.I.Clinton carries within her an air of supreme imperiousness and a feeling of imperviousness to personal harm. Indictment on criminal charges for lying to the F.B.I. would certainly preclude Clinton from continuing her campaign. So why isn’t Hillary Clinton charged with lying to the F.B.I.?Recall, Martha Stewart—wealthy businesswoman and television personality—was sent to prison was sent to prison in 2004 precisely because she lied to the F.B.I. on a matter involving insider trading—a matter significantly less critical to our Nation’s well-being than the matter at hand. The Attorney General’s Office could forgive Martha Stewart for the crime of insider trading. But the Attorney General’s Office clearly would not forgive Stewart for lying to the F.B.I. Why, then, is our Justice Department so willing—so readily willing—to forgive Hillary Clinton for lying to the F.B.I.?Less known, but just as serious, is the matter of the F.B.I.’s criminal investigation into the nefarious goings-on of the “Clinton Foundation.” Mr. Chaffetz specifically asked the F.B.I. Director whether the investigation into Clinton’s use of a private email server to conduct Government business was tied into the F.B.I.’s investigation into the “Clinton Foundation.” Most curiously, James Comey refused to discuss that issue at all, simply responding essentially with a terse, no comment.Given inconsistencies and, in some instances, curt utterances and evident reticence of the F.B.I. Director, James Come, during his testimony before Congress on July 7, 2016, and, too, given the odd dissembling in messaging and peculiar dislocation of meaning in the statement he delivered to the American People on July 5, 2016, we conclude that hidden, nefarious forces are at work protecting Hillary Clinton—are protecting the Executive Branch of Government that President Barack Obama, at the moment, presides over. This amounts to a tremendous miscarriage of justice.There is one supreme maxim that dictates the actions of the Executive Branch of Government: The President of the United States “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” This is mandated by Article 2, Section 3 of the U.S. Constitution. By extension, as is certainly clear, this means that the entirety of the work force under the U.S. President—from the highest Cabinet Official to the lowliest office worker—is expected to faithfully execute the Laws of our Nation. President Barack Obama has chosen in many critical instances, not to do so; neither did Hillary Clinton who was appointed by him and who worked under him as Secretary of State; neither would Hillary Clinton, in her capacity as U.S. President Hillary Clinton. What can be done to remedy this dire state of affairs?The Attorney General, Loretta Lynch could, of course, have indicted Hillary Clinton on criminal charges, regardless of James Comey’s recommendation to not bring criminal charges against the ex-Secretary of State. The Attorney General isn’t bound to accept the recommendation of the F.B.I. Director because a recommendation is just that—a suggested course of action. A recommendation is not a command. The Attorney General’s Office conducts its own review of the F.B.I.’s files.But, Loretta Lynch won’t indict Hillary Clinton. That won’t happen because the Attorney General and the U.S. President, Barack Obama don’t want that to happen. Obviously, the two of them—the Attorney General and the U.S. President—never wanted that to happen. Indeed, they never intended for that to happen. So the President, Barack Obama, carries on as if the entire matter of Hillary Clinton’s criminal conduct never happened. He takes to the road, campaigning on behalf of and together with Hillary Clinton (“Birds of a feather flock together”). The Attorney General, for her part, is happy to have this matter behind her as well. And both Hillary Clinton and her campaign officials breathe a collective sigh of relief.Indictment of Hillary Clinton on criminal charges would likely occur only if the Director of the F.B.I., James Comey had recommended indictment. Loretta Lynch has remarked she would adhere to the Director of the F.B.I.’s recommendation. But she said this only after her clandestine meeting with Hillary Clinton’s husband, Bill, on July 2, 2016, came to light.The Attorney General realized the singular impropriety of that meeting, even as she tried to argue the innocuousness of it. It was only after that meeting came to light that Loretta Lynch said she would accept whatever recommendation the Director of the F.B.I. makes. What is left unsaid, because of this imbroglio, is that the Attorney General knew, as did the President of the United States, Barack Obama, that the Director would make “the right decision”—the only acceptable decision for Obama’s plans to have Hillary Clinton succeed him—that the F.B.I. Director would recommend to the Attorney General that no criminal charges be filed against Hillary Rodham Clinton.The American People face a sad—horrific—and inescapable truth. Wealthy, powerful, secretive, seditious elements within the United States and wealthy, powerful, secretive, insidious interests outside the United States, have, together, orchestrated a charade of justice. The U.S. Department of Justice and its salient enforcement arm, the F.B.I. has been compromised.Can Congress set things right? Specifically, can Congress appoint independent counsel? Can Congress appoint a special prosecutor or team of special prosecutors, to review the accumulated evidence in the F.B.I.’s files and, after duly investigating those files, make its own recommendation to Congress? If that special prosecutor deems an indictment of Hillary Rodham Clinton appropriate, and recommends indictment, can Congress then compel the Attorney General to indict Clinton? Much is at stake for the future of this Country and for our sacred Constitution. The thought of a likely criminal occupying the highest Office in the Land should give every American pause. A likely criminal occupying that Office is not only farcical, it is appalling.In the next article we look at the intricacies of the special prosecutor appointment process to ascertain if this is feasible—if anything can be done to override a serious travesty of justice.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.  

F.B.I. DIRECTOR JAMES B. COMEY RELUCTANTLY GIVES HILLARY CLINTON A “GET OUT OF JAIL FREE CARD”

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” Jonathan Swift“It is an old saying that the quickest way to ruin a military career is to mishandle money or classified documents. Military defense counsel do well to remember that most old sayings are true.” USALSA REPORT: Trial Defense Service Notes: Practical Aspects of Trying Cases Involving Classified Information, Major Joseph A. Woodruff, Fort Rucker Field Office, U.S. Army Trial Defense Service, U.S. Army Legal Services Agency (June, 1986)On Tuesday, July 5, 2016 the top police official in the Nation, FBI Director James B. Comey, told the American public the FBI would not recommend criminal indictment of Hillary Rodham Clinton. The complete text of Comey’s statement is available on the FBI’s website.The Director’s statement is divided into four parts. First, the Director explains the purpose for his “unusual statement.” Second, the Director explains the nature of the investigation. Third, he explains what the FBI found. Last, the Director explains the FBI’s decision.While seemingly straightforward, James Comey’s lengthy statement shows inconsistencies—due perhaps to his unease with the decision. Was he pressured? One cannot but wonder.Comey explains the investigation into Clinton’s use of a personal e-mail server to conduct Government business, “during her time as Secretary of State.” The depth and breadth of that investigation shows the enormity of Clinton’s detestable behavior.This is after all a criminal investigation. Comey makes that fact plain. He points out the investigation proceeded as a referral from the Intelligence Community Inspector General.“Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”Comey doesn’t cite the federal Statute Hillary Clinton violated. It is this one: 18 U.S.C. § 793. Title 18 of the U.S. Code is titled “Crimes and Criminal Procedure.” 18 U.S.C. § 793 falls within Chapter 37. Chapter 37 is titled, “Espionage and Censorship.” 18 U.S.C. § 793 is titled, “Gathering, transmitting, or losing defense information.” Specifically, 18 U.S.C. § 793(f) and (g) reads, “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”Clinton claims her use of a personal server—actually several personal, private servers—to store or transmit government business simply shows, at worst, poor judgment—something her hangers-on and toadies willingly concede. If so, that alone should preclude her from serving as U.S. President. Clinton also claims her use of a personal server to store and transmit Government business didn’t offend State Department policy. She’s wrong. It does. She says, too, use of a private server to conduct Government business doesn’t rise to the level of a crime. Actually, it does.Clinton suggests her behavior isn’t illegal because no federal crime pertains to the kind of behavior the F.B.I. investigated. Were that true, the F.B.I. would have no legal basis to investigate Clinton. But Clinton is wrong. Her actions and behavior fall precisely within violation of a specific federal criminal law, namely, 18 U.S.C. § 793(f). That Statute is the peg the FBI hangs its hat on when it commenced its investigation of Clinton’s use of a private server to conduct federal Government business.Oddly, after reciting both the nature and extent of Clinton’s actions, one expects the Director to recommend indictment of Clinton to the Attorney General, Loretta Lynch. He fails to do so. Understand, this does not mean Clinton didn’t violate 18 U.S.C. § 793(f). The Director of the F.B.I., James Comey, doesn’t say that. He never says that; nor does he intimate that. He does say,“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”So, the Director makes manifestly clear that Hillary Clinton did, in fact, commit a crime--a felony. She clearly violated 18 U.S.C. § 793(f). Still, concern and confusion reign over Director Comey’s decision because Comey doesn't follow through and recommend indictment of Hillary Clinton on the ground of the sheer quantity of damning evidence against Clinton and the serious nature of it which he lays out in exquisite and excruciating detail. But, why did Comey issue a statement to the American People if, after recitation of such damning evidence against Clinton, he forbears, entirely, from recommending indictment?  Why, especially, did he issue a statement abruptly following the F.B.I.’s interview of Clinton?Reporting on that interview, The New York Times stated, “It could take weeks or longer to reach a decision. . . .” It didn't. See, “F.B.I. Interviews Clinton over Private Email Server.” Amy Chozick, July 2, 2016. So the Times must have been taken aback when Comey responded with a public statement a few days later.The Director of the F.B.I. says “I think the American people deserve those details in a case of intense public interest.” He also says, “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.” Is that second assertion true? Perhaps. But, consider: Obama had made plans to campaign with and for Hillary Clinton in North Carolina later that day. They were both on their merry way to North Carolina when Comey delivered his statement to the American public.Comey asserts no other part of Government knew what he would say. But that assertion doesn’t imply that another part of the federal Government didn’t know Comey would deliver a statement. Clearly, Obama knew that. He must have known that. Many other officials in Government must have known that the Director of the F.B.I. would be making a statement to the public.More to the point, although Comey asserts he didn't tell anyone in Government what he would be saying--he hadn't given anyone in Government the text of his statement--that doesn’t mean Comey didn’t inform Obama, and others, of the F.B.I.’s decision. After all, Obama and Clinton were off, that morning, to be seen together--to campaign together--in North Carolina. Would a sitting President be seen campaigning with a candidate for the highest Office in the Land if that President harbored doubts as to Comey’s decision? Not likely.Director Comey drafted his decision with care. Each word is measured. We must parse it to understand the motive behind it and the content of it.F.B.I. Director Comey says, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”This passage is troubling—no less so because, again, Comey drafted his statement with great care. Comey probably intended for the American public--and must certainly have intended for the legal community--to perceive a gaping hole between what the F.B.I. investigation uncovered on the one hand and, on the other hand, the peculiar reasoning and incongruent decision emanating from that investigation.For example, the F.B.I. director says no case law exists to support a recommendation to indict Hillary Clinton. But a paucity of case law shouldn't factor into the Director's decision. The absence of a fact pattern similar to or the same as those falling into actual cases is legally irrelevant. And, whether prosecutors would be likely to obtain a conviction, that, too, shouldn’t factor into the F.B.I.’s decision since the F.B.I. wouldn’t be prosecuting the case. The Attorney General’s Office would be prosecuting the case. Moreover, would the F.B.I. dare speculate as to the outcome of a case given the stakes? After all, we are talking about the behavior of a person who seeks the highest Office in the Land. Let the Attorney General make the call whether or not to prosecute Clinton. The question is, rather, simply and clearly, whether the facts of the matter under investigation meet the requirements of a federal criminal statute. They do. The facts of the matter under F.B.I. investigation meet the requirements of 18 U.S.C. § 793(f). That is sufficient. That is enough to warrant recommendation of indictment.Director Comey also stresses the absence of actual knowledge on Clinton’s part when he discusses Clinton’s actions and behavior in this matter. But Hillary Clinton need not have actual knowledge of her wrongdoing. Actual knowledge isn’t required. The mental state of the actor as set forth in 18 U.S.C. § 793(f) is met if the actor “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” Congress clearly established a lesser standard, apart from the stringent standard of actual knowledge, to support a criminal charge under 18 U.S.C. § 793(f). Intent to commit a wrong under 18 U.S.C. § 793(f)--that is to say, actual knowledge of mishandling of classified Government information under 18 U.S.C. § 793(f), isn't necessary. A critical element of the Statute is satisfied once “gross negligence” is present. The presence of “gross negligence” on the part of Clinton and others in the State Department exists—in fact, “gross negligence” exists many times over. This is clearly manifest in Director Comey’s recitation of Clinton's many wrongs in handling classified Government information when delineating them to the American public.But, oddly, Comey refrains from ever mentioning that Clinton’s mental state does meet the standard of gross negligence even if she didn’t have actual knowledge of wrongdoing. Black’s Law Dictionary (Ninth Edition) defines ‘gross negligence’ as, one, ‘a lack of slight diligence or care,’ or, two, ‘a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party. . . .” That standard has been met. Why, then, does Comey rely exclusively on a higher standard of 'actual knowledge' to commit a crime under 18 U.S.C. § 793(f) when the mental state of the actor is satisfied through a lesser standard of 'gross negligence.'The Director of the F.B.I., James Comey, says this: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” By avoiding use of the expression, ‘gross negligence,’ Comey draws the listener to his outrage over Clinton’s behavior but veers from categorizing that behavior as criminal within the meaning of 18 U.S.C. § 793(f), which would have mandated a recommendation of indictment.Black’s Law Dictionary (Ninth Edition) also defines the word, ‘careless,’ a word the Director of the F.B.I. does use when categorizing Clinton’s actions and conduct.  The legal meaning of the noun form of the adjective, ‘careless,’ namely, ‘carelessness,’ is ‘the fact, condition, or instance of a person’s either not having done what he or she ought to have done, or having done what he or she ought not to have done; heedless inattention.’  Black’s Law Dictionary (Ninth Edition) says the word, ‘carelessness’ can be a synonym for ‘negligence.’Granted, the mental state necessary to invoke 18 U.S.C. § 793(f) isn’t met through the presence of simple negligence. But, Comey says Clinton or her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” By adding the adverb, ‘extremely,’ to the adjective, ‘careless,’ Director Comey implies that Clinton’s actions and behavior do meet the standard of ‘gross negligence,’ set forth in 18 U.S.C. § 793(f). Comey's decision not to recommend indictment of Hillary Clinton, under 18 U.S.C. § 793(f), is, ultimately, and essentially, inconsistent with the import and purport of 18 U.S.C. § 793(f), and with Comey's own clear understanding of the Statute's meaning and of the Statute's clear application to Clinton's conduct.The expressions, ‘extreme carelessness’ and ‘gross negligence’ are functional equivalents. But, Comey has decided he won’t recommend indictment, and, since the precise expression, ‘extremely careless’ or ‘extreme carelessness,’ does not appear in 18 U.S.C. § 793(f), Comey achieves a modicum of cover--a bare minimum of cover--having used the expression, ‘extreme carelessness,’ in lieu of the expression, ‘gross negligence,’ to explain Clinton’s actions and behavior relating to the use of personal, private, unsecured servers to conduct Government business. Nonetheless, the Director of the FBI makes abundantly clear that he finds Clinton’s actions and behavior detestable--unworthy of one who would be Secretary of State, let alone of one who would be the President of the United States. He boldly castigates Clinton and her colleagues constantly, relentlessly. His caustic words rise well above mere admonishment.So, again, we must ask: was the Director of the F.B.I. pressured into letting Clinton go? We think so. Director Comey has the weight of the future of this Country on his shoulders. Had he recommended indictment, the Attorney General, Loretta Lynch, would have had to accept the recommendation or recuse herself from acting upon it. Obama would not be able to intervene in Clinton’s behalf without looking more the fool and proclaiming, beyond any doubt, his own disrespect for our Country's laws and legal process. Hillary  Clinton, for her part, would have to cease campaigning, at once.Comey’s statement bespeaks both the frustration of an honorable man caught in the middle of a blistering episode in our Nation’s history, compelled to render a decision he would rather not, but clearly disgusted over Clinton’s actions and behavior as Secretary of State. He is intent on illustrating that disgust to the American People. F.B.I. Director James Comey sets forth the grounds for recommending indicting Hillary Clinton with scintillating clarity. The arguments he propounds against doing so are, contrariwise, extraordinarily lame. Did Comey specifically intend to demonstrate, to the American People, a disconnect between the strength of the grounds for recommendation of indictment and the weakness for failing to do so? Did he intend for the American People to understand that "his hands were tied?"Certainly, James Comey’s tacit message to the American People is clear. Hillary Clinton’s actions and behavior as Secretary of State--whether one understands the criminality of them or not--were, at the very least, altogether unworthy of a person holding a Cabinet Level position. Comey is tactfully saying that, for the well-being of the Country, and to show respect for the American People, Clinton should have the decency to withdraw her candidacy. But, “decency” isn’t a component of Hillary Clinton’s character. Hillary’s character is one devoid of decency. It is one devoid of trustworthiness, of sincerity, of integrity. Indeed, had the Director of the F.B.I. recommended indictment and if the Attorney General accepted that recommendation, Clinton likely would, given the choice, continue campaigning. But, she wouldn’t be given that choice. She would have to be carried out, kicking and screaming “from the room.”So, where does that leave Americans? We have a choice this November. No less than the fate of this Country rests in the balance. The American People must consider the ramifications of electing Hillary Clinton to the highest Office of the Land. Clinton’s character, as U.S. President won’t change. That is clear. That, we know. Clinton’s behavior and actions as Secretary of State present more than an inkling of the erratic behavior and dangerous action should she become President of the United States. Criminal indictment or not, Hillary Rodham Clinton is a public disgrace. She should not be considered worthy of holding any public Office, let alone the highest Office in the Land.Of course, many individuals who support Hillary Clinton’s candidacy do not give thought to the weight of James Comey’s words. They only look to and address his decision. But, then, these same people couldn’t care less if Clinton were indicted. They would argue that indictment isn’t equivalent to conviction. But, suppose Clinton, once indicted, was convicted of violation of 18 U.S.C. § 793(f). Would that make a difference to them? Probably not.Those Americans who support Hillary Clinton’s candidacy are blind to Clinton’s multiple character flaws. They are blind to her errant and erratic behavior. They are blind to her lack of emotional stability. They are blind to her lack of competency. Those Americans who support Clinton’s candidacy are altogether blind to her loathsome lust for power and to her singular obsession with self-aggrandizement.Those Americans who support Clinton’s candidacy cannot envision or, perhaps, they simply refrain from considering the threat Clinton poses to the preservation of our Bill of Rights, the threat posed to the preservation of our Heritage, to our culture, to our History, to the very existence of an independent Sovereign Nation and free Republic.Obama says that the American People may hold to an “imaginary past” or they may “reach for the future.” For Barack Obama and Hillary Clinton America’s “past” is and was just a dream, a chimera, an illusion. They seek to reconfigure America—to twist it, to reshape it beyond anything our Founders envisioned for it. Obama’s message to the American People comes across as a damning threat, less so a welcome promise of things to come if Clinton does in fact secure the White House.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE “TERROR WATCH LIST”—A GOOD IDEA? A GOOD IDEA GONE BAD? OR A BAD IDEA ALL ALONG?

THE “TERROR WATCH LIST”—A GOOD IDEA? A GOOD IDEA GONE BAD? OR A BAD IDEA ALL ALONG?

“Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested. . . . But even that is all beside the point, the main question is: Who is issuing the indictment?” “The Trial,” a novel by Franz Kafka, published in 1925Who is issuing the indictment, indeed? Unlike Josef K., the protagonist, in Franz Kafka’s insightful allegory, we, Americans, don’t live in a dictatorship. But, is that true? Was that statement once true, but true no longer?How is it that, “We the People of the United States, in Order to form a more perfect Union. . .” has devolved into “We the Government of the United States, in Order to form a more perfect Union. . . . ?”  The phrases—“insure domestic Tranquility,” “provide for the common defense,” “promote the general Welfare”—are lost in time. The federal Government and the media circus subsume these phrases, appearing in the Preamble to the U.S. Constitution, under the ubiquitous, deceptive expression, “national security”—an expression that appears nowhere in it. What hath this Government in the name of “We the People” wrought for the People.Understand: Nothing—absolutely nothing—Congress, or the United States President, or the President’s legions of bureaucrats do is more invidious and insidious than disemboweling and dismembering the Bill of Rights in the name of national security. We should not excuse or laud emotional trumpet calls for action before pondering the legality and ethical merits of such Government action. We should not excuse or laud emotional trumpet calls for action before considering their impact on our free Republic. We should not excuse or laud emotional trumpet calls for action before recognizing their cost—the possible loss of our precious rights and liberties. For, once lost, they’re lost forever.When emotions run high, restraint is required. The denial of gun sales to anyone whose name appears on the Government’s “terror watch list” is a recent proposal bubbling to the surface as a result of the recent carnage wrought by a home-grown self-radicalized Islamic terrorist. On Monday, June 20, 2016, the U.S. Senate voted on a measure that would do just that: preclude a person from purchasing a firearm if his or her name appears on the Government’s “terror watch list.” Fortunately, sane heads prevailed. The measure was voted down. But, we may expect further attempts by antigun Legislators in both the House and the Senate to push a measure like this one, through. [Breaking News: At the moment, June 22, 2016, the foes of the Second Amendment are staging a sit-in on the Floor of the House. They won't "sit contented" until the Second Amendment is stricken from the U.S. Constitution].Secret Government lists, such as the “terror watch list” and the “no fly list,”—and perhaps others, of which we are unaware—are problematic in a free, democratic Republic. For, once an American’s name appears on a secret government watch list, his or her rights and liberties, guaranteed under the U.S. Constitution, are in jeopardy. More to the point, such lists enable the federal Government to deny an American citizen his or her rights and liberties absent any charge of criminal wrong-doing. The Government, at the stroke of a pen, denies a person his or her rights and liberties without notice, without hearing, without reasonable means to challenge the inclusion of their name, in open court. Understand, we aren’t saying or suggesting those who seek to harm innocent Americans should have access to firearms. And, those Senators who voted down the “terror watch list” measure, on June 20, 2016, aren’t tacitly suggesting that American citizens who seek to harm innocent Americans should have access to firearms. These U.S. Senators have obviously asked themselves—and we need ask ourselves too—this profound question: Are we, Americans, ready to forsake, as a Nation, our sacred rights and liberties for the illusion of, or a mere modicum of, collective security? Is this something a free Republic, founded on a Bill of Rights and on a Constitution establishing a federal Government with carefully defined, demarcated, and limited power and authority, should accept or tolerate?The proposal came before the Senate—cavalierly bandied about by those who, despite assertions to the contrary, care not one whit about our Bill of Rights. That measure would deny Americans due process of law, a right guaranteed to all Americans under the Fifth Amendment. That measure would also deny Americans their natural right to keep and bear arms, a right codified and guaranteed to Americans under the Second Amendment.Millions of law-abiding citizens exercise their sacred right to keep and bear arms. They take responsibility for their own self-defense. They pose no threat to self or others. Are they expected to sacrifice that right, codified in the Second Amendment? Is that not asking too much of Americans? Would not that sacrifice operate as a capitulation to Islamic terrorism? Would not that sacrifice eviscerate our Bill of Rights and destroy one Amendment, in particular, that proclaims our uniqueness: that Government exists—truly exists—at the pleasure of the People and does not exist as a right unto itself?Lost in discussion—because of the frenzy of the moment—is any mention, any hint, how or whether Government intends to protect Americans from Islamist terrorists without infringing the sacred right of millions of law-abiding Americans who wish “to keep and bear arms.” Some Americans, we know, have no regard for that right. They seek to undermine it—are even counting on undermining it—in part, through application of the “terror watch list” to gun sales. They relish using a disastrous event to further a wicked agenda.What do we really know about this secret “list?”Consider: “The number of names on the terror watch list has grown steeply in the past decade, compounding the problem of inaccuracies. Whereas 288,000 names were on the list in 2005, the number had grown to 1.1  million by 2009. A Justice Department audit of the watch list in 2009 revealed a thirty-five percent rate of error, and disclosed that in seventy-two percent of the cases, the FBI failed to respond to these errors by removing the person from the watch list in a timely manner.” “Symposium: Inside America’s Criminal Justice System: The Supreme Court On The Rights Of The Accused And The Incarcerated: Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions,” 46 Akron L. Review, 433, 461-462, Teresa A. Miller, Professor of Law, State University of New York, at Buffalo (SUNY—Buffalo)(2013).The critical problem presented by the Government’s “terror watch list” and other such “watch lists” is four-fold. One, an American loses his or her rights and liberties before commission of any crime or before probable cause exists an American has even considered committing a crime. This is a “Minority Report” scenario. Two, the Government’s “terror watch list” is secret. American citizens don’t know their name appears on the list until they seek to exercise a fundamental right and find they cannot. That alone should give all Americans pause. Three, fighting to remove one’s name from a secret list is extraordinarily difficult. The Government condemns an American citizen in secret, without notice, without hearing, without satisfactory legal recourse. Four, since the “terror watch list” is secret, the Government can add names to it at will—indiscriminately. This action results in millions of American citizens divested of their Second Amendment “right to keep and bear arms.” The existence of secret Government “watch lists” in a free society—in a free republic—makes mincemeat of one’s rights and liberties. True Congressional oversight doesn’t and cannot exist, regardless of assertions to the contrary. Such feigned oversight is window dressing, nothing more. In the name of “national security” the Government clamps down on one’s beliefs, thoughts, actions, even absent criminal wrong-doing.One academic writer says, “the insulation of national security conduct from external review obscures hard questions surrounding liberty and security, undermining the rule of law.” See, “Essay: Rule Of Law Tropes In National Security,” 129 Harvard Law Review 1566, 1566 (2016), Shirin Sinnar, Assistant Professor of Law, Stanford law School.”The problem boils down to this: whether the Government ought to deny an American citizen’s rights and liberties merely for displaying odd character traits. The existence of a “terror watch list” creates tension with the Bill of Rights.The existence and use of a “terror watch list” raises a host of questions. Do you know the factors Government uses when placing a person on a “terror watch list?” Do you know any factor?” Can you know how those factors, change, grow, evolve through time? If your name appears on a “terror watch list,” how do you contest that? What is the monetary cost for fighting Government action? How does the Government remove a name when it uncovers a mistake? When would Government act to remove a name—your name— appearing on the “list,” mistakenly? Would Government remove a name appearing on the list mistakenly? Why has the list grown from a few thousand names to tens of thousands, to hundreds of thousands, to over one million in the last several years?Suppose a person seeks to join or associate with a political group the Government targets. Would that not conflict with the free association clause of the First Amendment? Suppose a person seeks to affiliate with the Ku Klux Klan, the American Nazi Party, the American Communist Party? Should that person’s name appear on a “terror watch list?” If so, how far do we go? Suppose a person seeks to affiliate with the Green Party, the Constitution Party, the Libertarian Party, or with various groups comprising the “Tea Party.” Which affiliation warrants placing an American citizen’s name on the “terror watch list?” Should any affiliation warrant placing a person’s name on the “terror watch list.” The First Amendment sets forth in principal part, as proposed by and as elucidated by one founder of our Nation, James Madison: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good.” We have seen the insidious effects of fear-mongering before: the infamous McCarthy hearings of the 1950s, during the “Cold War.”We are now witnessing a new twist on an old ploy: an attempt to use a secret Government “terror watch list” to deny to hundreds of thousands, and conceivably eventually, to millions of Americans their natural right to keep and bear arms.Ought the Government suspend the civil liberties of potentially millions of law-abiding Americans if Government believes, rightly or wrongly, such harsh measures will reduce the carnage created by a few? Are we, as Americans, prepared to sacrifice, conceivably, all rights and liberties for the benefit of national security?Cannot an American citizen hold “extreme” views without fearing Government reprisal? Is it not the right of an American to hold and display views another American might find extreme, even distasteful? Are not American citizens slowly squeezed into a tight container as Government dictates to the public what is fit and proper thought, belief, and action?Are you willing to sacrifice free speech? Are you prepared to surrender your firearms? Are you willing to sacrifice freedom from unreasonable searches and seizures? Are you willing to abandon the writ of Habeas Corpus? Are you agreeable to forgoing the right to a fair and public trial? Are you prepared to give up friends and associates because the Government doesn’t approve of their idiosyncrasies? How would the founders of our Nation respond to these questions if posed to them? Do you have answers to these questions? If so, sound off.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

SHOULD SCHOOL TEACHERS BE ARMED? THE UFT DOESN’T THINK SO, BUT ONE EFFECTIVE ALTERNATIVE WOULD BE TAXING TO TAX PAYERS.

CO-FOUNDER OF ARBALEST GROUP, LLC., RESPONDS TO UFT OPINION PIECE CONCERNING THE ARMING OF NEW YORK'S SCHOOL TEACHERS

The “United Federation of Teachers (UFT”), a New York City affiliate of the American Federation of Teachers, posted an article in its  publication, Teacher, titled, “Gun Fight.” The article appeared in the May 5, 2016 edition of Teacher. The editorial takes aim at the notion that arming teachers to protect students is a bad idea.Stephen L. D’Andrilli, one of three founders of the weblog, the Arbalest Quarrel, was a licensed New York teacher and receives the UFT publication, Teacher.After reading the UFT Op-Ed, Stephen felt a need to respond and did so. Stephen’s response to the Op-Ed was published in the June 2, 2016 edition of Teacher, under the Editor's title, “Editorial shoots blanks.”Stephen's response to the UFT editorial appears, in full, below:“I am responding to your recent editorial (“Gunfight”). The question posed is whether allowing educators to bring firearms to K-12 schools in New York would protect students against gun violence. The editorial considers the question from the standpoint of the 2012 Sandy Hook Elementary School tragedy.In arguing that arming educators is a bad idea, a few hypothetical situations involving armed educators are presented; outcomes are postulated; and a tacit conclusion is drawn: educators should not be allowed to bring firearms to school.The scenarios are typical straw man arguments. Nothing substantive can be deduced from them. One may argue just as readily that an armed educator would likely successfully protect the lives of his or her students from an armed aggressor. The editorial’s hypotheticals amount to straw man arguments. Straw man arguments obfuscate. They do not elucidate. Any possibility follows from a false antecedent in a counterfactual.The editorial concludes by discussing another matter entirely: the need to provide adequate mental health care for deeply disturbed individuals is no more than a stopgap. The point does not address deeply disturbed individuals who slip through the cracks; nor does it address the issue of criminals and terrorists that threaten soft targets like schools.So, if the invasion of schools by armed lunatics, terrorists, or assorted criminals cannot be contained and, through time, becomes pervasive and, if educators are not armed, what is the alternative? There is one we can think of: an armed contingent of police officers, peace officers, or private armed security to protect students, faculty, and administrators in schools. That will work, but, what will it cost? One armed guard, as the editorial staff of New York Teacher admits, will, arguably, never be enough.”

STEPHEN D'ANDRILLI'S BIO

Stephen was President and CEO of two security consulting and criminological research firms. He was also a business partner in a New York City licensed indoor gun range. Stephen is a decorated veteran police officer of the New York City Police Department. While employed with the N.Y.P.D., Stephen earned three University degrees from John Jay College of Criminal Justice. Stephen earned a Bachelor of Science degree in Police Science, a Master of Arts degree in Criminal Justice Administration and a Master in Public Administration degree.Later, Stephen served as an Adjunct Professor/Lecturer of Police Science at John Jay College of Criminal Justice. Stephen then served as a high school Social Studies Teacher for the New York City Department of Education and served as Dean and Athletic Coach for the Department. He is an expert in personal and corporate security.Stephen is a National Rifle Association Certified Firearms Instructor (pistol, rifle and shotgun) and Training Counselor, and is an active member of the International Association of Law Enforcement Firearms Instructors. He has testified on firearms, crime, and self-defense before governmental committees and at governmental hearings, on many occasions.Stephen has written many articles on these subjects and has appeared on television and radio. Major national and international newspapers, magazines and professional journals have profiled Stephen. Stephen is passionate about the Constitution and passionate about the Bill of Rights, the cornerstone of the Republic. Stephen is aware the Bill of Rights is under attack. Stephen understands that Americans must defend the Bill of Rights if they are to protect and preserve their heritage.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Stephen L. D’Andrilli (Publius) All Rights Reserved.

A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID

A LOOK AT ONE OF TRUMP’S CHOICES FOR U.S. SUPREME COURT JUSTICE: ALLISON EID

INTRODUCTION TO A CONSIDERATION OF POSSIBLE PEOPLE WHO MAY GAIN A SEAT ON THE U.S. SUPREME COURT

The mainstream media’s endless, nauseating, servile behavior toward Hillary Clinton won’t go away. That same media demonizes Donald Trump. Yet, the possibility of a criminal indictment against Clinton gets scant attention. The powers that crush the public into submission actively embrace a Clinton Presidency.If Hillary Clinton becomes our next President, the Second Amendment will face renewed assault and eventual, inevitable de facto repeal. That isn’t guess. That is fact.Clinton will be in position to  anoint the ninth U.S. Supreme Court Justice. Clinton's nominee will receive a hearing and vote. That, too, is not conjecture. That is fact. Senator Grassley's Judiciary Committee cannot feasibly forestall a confirmation vote indefinitely if Clinton secures the Oval Office.If Clinton's first nominee to sit on the high Court isn't confirmed, her second, or third choice likely will be. Once confirmed to a seat on the high Court, the liberal-wing of the Court will have secured its majority: five to four. Any case remotely affecting the Second Amendment that comes before the Court on appeal will almost certainly  be taken up. The exercise of the right of the people to keep and bear arms will come under renewed assault.The liberal-wing majority's decision will whittle away at the Heller and McDonald case holdings. The liberal-wing majority may overturn the holdings of those two seminal cases outright.Clinton hasn’t released a list of prospective U.S. Supreme Court candidates, but Trump has. We guess Clinton is content with Merrick Garland—a Court of Appeals Judge for the District of Columbia Circuit who has openly attacked the Second Amendment in two decisions. Clinton will do nothing to risk Garland’s candidacy. Judge Garland is Obama's darling. Clinton would hardly wish to anger Obama as the mainstream news sources have reported, on the day of the posting of this article, June 10, 2016, Obama's endorsement of Hillary Clinton's candidacy.  Clinton knows that Garland exhibits the same enmity toward the Second Amendment as she does, and as Obama does. That is a necessary condition for nomination, notwithstanding that neither Obama nor Clinton would say so publically.We know Trump will support the Second Amendment. That isn't bombast. Trump has released a list of candidates. Let’s consider those candidates’ records. We begin with Allison Eid, a Colorado State Supreme Court Justice, who issued the opinion in Regents of the Univ. of Colo. vs. Students for Concealed Carry on Campus, LLC., 2012 CO 17; 271 P.3d 496; 2012 Colo. LEXIS 114; 2012 WL 691538.

FACTS OF THE CASE

The Plaintiff, a student group seeking to carry concealed firearms on campus, sued the University of Colorado’s Board of Regents. The Plaintiff alleged the Board’s weapons policy violates the Colorado Concealed Carry Act (“CCA)  and Article 2, Section 13 of the State Constitution’s right to bear arms. The Board of Regent’s Weapons Control Policy prohibits carrying of firearms on campus except for certified law enforcement personnel. Failure to abide by the policy leads to expulsion.The Complaint alleges that three students sought to carry firearms “when traveling to, from, through, or on the campuses of the University of Colorado for self-defense.” One of the students contacted the Chief of Police at the University, in Denver. He sought permission to carry a concealed weapon on campus. Two other students contacted the Chancellor of the University in Colorado Springs. Each of the students asserted they held a valid concealed-carry permit under State Statute, the CCA. The officials denied the requests, citing the University policy.The, Defendant, Board of Regents moved to dismiss, arguing the students had failed to state a claim for relief. The lower District Court agreed. The Court argued that the CCA prohibits only “local governments” in Colorado “from adopting or enforcing laws contrary to the CCA.” The Court said “the Board is not a ‘local government’” and, so, had authority to ban firearms on campus. The lower Court also said, oddly, that “the right to bear arms is not a ‘fundamental right.’” The lower Court also said the right can instead be “highly restricted” by the state’s valid exercise of its police power.” The lower Court then dismissed the complaint, and the students appealed the adverse decision to the next level: the Colorado Court of Appeals.The Court of Appeals focused on “the plain language” of the Statute, and on the State Legislature’s “desire for statewide uniform standards” to include—as the Statute says—“all areas of the State." The Court of Appeals concluded that “all areas of the State” means college campuses too. On the Constitutional issue, the Court of Appeals said the lower District Court applied the wrong standard of review. The Students’ allegations did state a claim for relief. The Court of Appeals thereupon reversed the decision of the lower Court.The Board of Regents appealed the adverse decision to the Colorado Supreme Court. The high State Court affirmed the decision of the Court of Appeals, finding for the Plaintiff Students.

THE STATE SUPREME COURT’S HOLDING AND REASONING

Delivering the opinion of the high State Court, Justice Eid said: “We hold that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.” The Colorado State Supreme Court added, “Because we affirm on statutory grounds, we do not consider the Students’ constitutional claim.” Consideration of the constitutional claim is unnecessary here.The high State Court peered closely at the CCA. The Court reasoned that the Colorado General Assembly enacted the CCA because “the General Assembly found that jurisdictions were inconsistent in issuing concealed-carry permits and in identifying ‘areas of the state where it is lawful to carry concealed handguns.’” "The General Assembly found the criteria and procedures for lawfully carrying a concealed handgun ‘should be consistent throughout the state to ensure the consistent implementation of state law.'"The General Assembly pointed out, clearly, concisely, categorically that it was “‘necessary that the state occupy the field of regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based on a person’s constitutional right of self-protection and there is a prevailing state interest in ensuring that no citizen is arbitrarily denied a concealed handgun permit and in ensuring that the laws controlling the use of the permit are consistent throughout the state.”The Board of Regents claimed, erroneously, “‘that the CCA does not divest it of its authority to adopt and enforce the Policy [because the Board] holds special, constitutional authority to enact policies governing the University of Colorado.”’The State Supreme Court clarified that local governments—and that includes the Board of Regents—“are expressly prohibited from ‘adopt[ing] or enforce[ing] an ordinance or resolution that would conflict with any provision [of the CCA].’”In conclusion, the Colorado Supreme Court held “that the CCA divested the Board of Regents of its authority to regulate concealed handgun possession on campus.”

CLOSING THOUGHTS ON THE POSITIVE IMPLICATIONS OF JUSTICE EID’S OPINION

Colorado State Justice Allison Eid respects the rule of law. She doesn't impose her will on the people of the State. She sees her job as interpreting the law of Colorado as it exists, not as she may happen to prefer--whatever her personal predilections may be. She recognizes that the State Legislature, the General Assembly, has preempted the field of firearms regulation. Colorado's General Assembly has done this, obviously, to ensure that the right to bear arms as embodied in the State Constitution, and, by logical entailment, the fundamental right of the people to keep and bear arms as codified in the Second Amendment of the U.S. Constitution, as is a right exercised by Americans throughout the State--a right uniformly exercised, throughout the State--is not subject to curtailment by local authorities who happen to disagree with Americans' ownership and possession of firearms.

WHAT HAPPENS TO THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS WHERE STATES PERMIT LOCAL JURISDICTIONS TO IMPOSE THEIR OWN WILL ON THE PEOPLE?

Several State Legislatures do allow jurisdictions within the State to adopt their own rules, codes, and ordinances regulating the carrying of handguns concealed. This is called "Home Rule." Relaxation of State preemption invariably weakens the Second Amendment because local jurisdictions, given the opportunity to flex their muscle through the device of "Home Rule," deny American citizens' right to keep and bear arms. Local jurisdictions do this under the guise of promoting law and order and preventing gun violence even though such rules, codes, and ordinances do nothing to curtail gun violence and do nothing to promote law and order. Actually, such rules, codes, and regulations ensure that criminal gun violence will increase, not decrease.Local rules, codes, and ordinances that curtail a law-abiding citizen's ability to defend his or her life and well-being serve to undercut the fundamental right of the people to keep and bear arms, as codified in the Second Amendment. This creates confusion because the public is bombarded with a myriad of conflicting requirements. This also results in the useless expenditure of police administrative resources better utilized in fighting crime. And this results in the needless expenditure of personal resources. A person, who seeks to exercise his or her natural right of self-defense, under the Second Amendment must spend inordinate amounts of time and money for the privilege of doing so as the sacred right is supplanted by government licensing schemes. Thus favoritism, corruption, bribery, and black market activity begin to germinate and flourish.

COMPARISON OF LEGAL METHODOLOGIES

Consider State Justice Eid’s methodology in deciding cases. Her methodology follows the methodology employed by Justice Thomas and by the late Justice Scalia. Justice Eid looks at “the plain text” of a Statute. She doesn’t read into a Statute what she likes and discard what she may happen not to like. She doesn’t second-guess the State Legislature.Compare State Justice Allison Eid’s methodology and jurisprudence to Judge Merrick Garland, Obama's nominee to sit on the U.S. Supreme Court. Judge Garland decides Second Amendment cases and those cases implicating the Second Amendment by insinuating his personal predilection against the Second Amendment into his decisions. Judge Garland isn’t content in looking at “the plain text” of a Statute if he doesn’t like its meaning. State Justice Eid, unlike Judge Garland, accepts a Statute as it exists. She sees her job as interpreting the law, not rewriting it.Which Jurist is likely to preserve the Bill of Rights for the benefit of all Americans as the founders of our Republic intended? Which Jurist is likely to shred the Bill of Rights because it is an “old document” and must be rewritten, consistent with the Constitutions of other nations, as Justice Ruth Bader Ginsburg and Justice Stephen Breyer apparently would like very much to see? Whom would you like to see sitting on the U.S. Supreme Court: State Justice Allison Eid or U.S. Court of Appeals Judge Merrick Garland?If Donald Trump secures the Office of U.S. President, the Second Amendment will be preserved, even strengthened. We may rest assured of that. If Hillary Clinton secures the Office of U.S. President, she will do everything in her power--and outside her power--to weaken and eventually destroy the Second Amendment. That is her goal. That is the goal of those both inside and outside this Country who seek to eliminate America's Bill of Rights. She will argue it is the mandate of the American people to rewrite and redefine America's Bill of Rights. The American people must crush Hillary Clinton's naked ambition for absolute power.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

LEAHY DEFIES GRASSELY BY HOLDING JUDICIARY COMMITTEE HEARING ON OBAMA’S THIRD U.S. SUPREME COURT NOMINEE: MERRICK GARLAND

"And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." Alexander Hamilton, Federalist No. 78, 1788"If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last.... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." Alexander Hamilton, Essay in the American Daily Advertiser, Aug 28, 1794

ANTI-SECOND AMENDMENT SENATE DEMOCRATS ON JUDICIARY COMMITTEE STRUGGLE TO CAPTURE A FIFTH SEAT, LIBERAL-WING MAJORITY ON THE U.S. SUPREME COURT, TO RIP APART THE SECOND AMENDMENT OF THE BILL OF RIGHTS

On Wednesday, May 18, 2016, Senator Patrick Leahy, Democrat-Vermont, Ranking member of the Senate Committee on the Judiciary, held an open hearing on Merrick Garland’s nomination. This hearing is the one Leahy had alluded to last month.No, this wasn’t a confirmation hearing on Obama’s third appointment to the U.S. Supreme Court. Senator Charles Grassley, Republican-Iowa and Chairman of the Committee, didn’t preside over the hearing; nor did he appear. No other Republican member appeared. No member of the Committee, Republican or Democrat, should have appeared because Senator Grassley didn’t sanction a hearing on Garland—any hearing. Yet, the Ranking Member of the Committee, Patrick Leahy, held a hearing anyway. He held the hearing in defiance to the will of the Chairman of the Committee. He held the hearing in defiance to the will of the Senate Majority Leader, Mitch McConnell, Republican-Kentucky.Senator Leahy admitted: “I can’t convene a confirmation hearing,” adding, “We’re in the minority.” The “minority” Leahy refers to include: Senators Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons. They all pressed for Garland’s nomination.Why did Senator Leahy hold a hearing against Senator Grassley’s wishes? What did Leahy and other Judiciary Committee members and members of the Democratic Party hope to carry out?Senator Leahy and other Democratic Party members of the Committee on the Judiciary held a hearing not simply to air personal grievances. They did so to push a personal agenda—one inconsistent with the Second Amendment to the U.S. Constitution. Senator Leahy and the Democratic Party Senators virulently oppose “the right of the people to keep and bear arms.” Understand, the Senate Committee on the Judiciary doesn’t merely consider U.S. Supreme Court nominations, Appellate Court nominations and District Court nominations. The Senate Committee on the Judiciary has other important roles. “The Judiciary Committee plays an important role in the consideration of nominations and pending legislation.” Senate Democrats on the Judiciary Committee draft legislation to obstruct “the right of the people to keep and bear arms.” They draft legislation to defeat the Second Amendment under the pretext of serving the citizenry. They hoodwink the public. The goals they aim toward do not serve Americans’ sacred rights and liberties. They watch Americans’ behaviors, habits, and actions to control and constrain Americans. They treat Americans like wayward children. These Legislators are deceitful. They lure us in with pious words. They are America’s betrayers.So, who appeared at Leahy’s unsanctioned, May 23, 2016 “open hearing?” Those whom you would expect: Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons appeared. They all support and press for Garland’s confirmation; and they all oppose “the right of the people to keep and bear arms.”

THE POSITIONS OF DEMOCRATIC PARTY MEMBERS OF THE SENATE JUDICIARY COMMITTEE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS IS CLEAR, CATEGORICAL AND CERTAIN. THEY DARE TO SPEAK FOR ALL AMERICANS, PROCLAIMING:  AMERICANS DO NOT NEED AND OUGHT NOT HAVE FIREARMS.

Leahy’s position on the Second Amendment is no secret. For years Leahy pushed Obama’s antigun agenda. The New York Times reported on Leahy’s strategy in 2013. It said, “The view of Mr. Leahy, a Democrat . . . is crucial because the work of his Judiciary Committee will be central to advancing any new gun legislation.” The Committee “will hold hearings on potential gun legislation this month [January] proceed[ing] with Mr. Obama’s request to push legislation that includes a renewal of an assault weapons ban, a limit on magazine size and universal background checks.”Sheldon Whitehouse also signals hostility toward the Second Amendment. During Judge Sotomayor’s confirmation hearing, Senator Tom Coburn, Republican-Oklahoma tried to get her to issue an opinion on whether gun owners have a fundamental right to bear arms.” She wouldn’t make a pronouncement.” Sheldon Whitehouse came to her defense. He said, “he was worried that the judge had been pushed too far, perhaps, in a lobbying way, to expound on an issue that is probably going to come before the Supreme Court. He suggested that a message was being sent that nominees need to signal how they will rule on gun-rights cases. He called it almost unseemly to seek commitments on future cases.”As you might expect, U.S. Supreme Court confirmation hearings are a charade. Leahy isn’t kidding anyone. If Garland received a confirmation hearing, he would say nothing to reveal his antipathy toward the Second Amendment. We know U.S. Supreme Court candidates hide their personal jurisprudential and philosophical predilections during confirmation hearings, as coached, to avoid offending anyone, thereby strengthening their chance at confirmation. Justice Sotomayor hid her antipathy toward the Second Amendment at her confirmation hearing. Judge Garland would do so at his confirmation hearing, were one scheduled. Senator Grassley isn’t planning one. For, if a confirmation hearing were in the offing, Senators Whitehouse, Leahy, Feinstein, Schumer and others would come to his aid, lest he reveal his aversion toward the Second Amendment. Senator Grassley certainly knows this.Thus, Senator Leahy’s intimation that confirmation hearings are effective at eliciting truth is dubious and disingenuous. At the May 23, 2016 hearing, Leahy asserted, “what bothers me is because he [Garland] does not have a hearing and they’re not allowing him to have a hearing, his record is being smeared by outside groups, some of these Pacs, and others. Senate Republicans are denying a distinguished public hearing and a fair opportunity.” "No," Senator Leahy. Judge Garland's record as revealed in our letter to you isn't a smear. It's the plain, unadulterated truth--truth the American public would not learn at a public hearing. That's why Garland won't receive a confirmation hearing; and that's why Garland shouldn't receive one. No person deserves a seat on the high Court who does not respect, in fact, revere our Bill of Rights--all Ten Amendments. Obama and the Senate Judiciary Committee Democrats’ Trifecta bet is: Sotomayor, Kagan, and Garland. Obama is two for three. He aims for all three. For these three the Second Amendment is an anathema. Obama knows this. Otherwise, he wouldn’t have considered them. He wouldn’t have considered them if they were merely neutral on the Second Amendment, much less a proponent of the Second Amendment. Obama wants fanatics on the U.S. Supreme Court. He wants individuals on the U.S. Supreme Court who share his hostility toward the continued existence of our Nation's Second Amendment. Ranking member Senator Leahy and his fellow Democrats on the Judiciary Committee also want fanatics on the U.S. Supreme Court. These cohorts of Senator Leahy willingly support and do their part to promote Obama's antigun agenda.If Garland secures a seat on the high Court, the liberal-wing gains a fifth vote. The liberal-wing then has its majority. The liberal-wing of the U.S. Supreme Court strenuously opposes the fundamental right codified in the Second Amendment.Let’s consider Senator Dianne Feinstein’s position on the Second Amendment. Does the American public truly harbor any doubt? Feinstein’s resentment toward the Second Amendment is well-known, her remarks against gun ownership, legion. She took personally the failure of her bill to ban over two thousand types of firearms but continued undeterred. Charles Schumer also attacks the Second Amendment with passion. In 1994, then “Representative” Schumer, with the late Senator Howard Metzenbaum, Democrat-Ohio,  “introduced a ‘kitchen-sink’ bill that covered everything from licensing to lists of weapons to be prohibited. It proved politically ahead of its time.” Richard Blumenthal uses sporadic shooting sprees to couch attacks on the Second Amendment. He said, “he hoped that the latest [2014 Santa Barbara] shooting would ‘provide an impetus to bring back measures that would keep guns out of the hands of dangerous people who are severely troubled or deranged, like this young man was.’” Blumenthal’s remark may sound sensible. But, the remark carries dangerous implications. Millions of American’s would lose their Second Amendment rights. Even if Legislators carefully tailored a law, can Americans trust the federal government to interpret the law narrowly? Not likely! Consider, too, the difficulties in defining English words. How do we define the word, ‘severely,’ as a modifier for the word, ‘troubled’? How do we define the word, ‘deranged?’ Medical doctors don’t use these words. They are not medical terms of art. Lawyers don’t use these words either. They aren’t legal terms of art. They are rhetorical words. They merely suggest but point to nothing.Before we exclude a group of Americans from exercising their Second Amendment rights, give the matter thought. Millions of law-abiding Americans may lose their Second Amendment right “to keep and bear arms” simply because their doctors prescribe an antidepressant for them.What can we glean from Al Franken’s record on the Second Amendment? Franken is cagey, but his contempt for the Second Amendment is obvious. Sure, he sounds like a supporter of the Second Amendment. He says, “Minnesota has a long tradition of gun ownership, and I support Minnesotans’ right to own a gun for collection, protection, and sport. I also believe that the Second Amendment protects that right against both the federal government and the states. But the right to own a firearm is not one to be taken lightly. I believe Minnesota has struck the proper balance, for example, by requiring background checks and live firearms training for carry permits.” Let’s parse one phrase in that passage.We ask, “what does Al Franken mean here by ‘proper balance’ as applied to law-abiding Minnesota residents?" What does Al Franken mean by 'proper balance' as applied to all law-abiding Americans? Franken means strict gun control Consider: Al Franken “voted YES on banning high-capacity magazines of over 10 bullets.” In 2008 Franken said he supports a federal ‘assault weapons’ ban but then oddly claims he supports the Second Amendment. The claim means nothing. It’s a trick. Antigun zealots employ it, continuously, to keep proponents of the Second Amendment at bay, guessing. But Americans recognize the ploy. Antigun zealots won’t rest until the Second Amendment ceases to exist. Franken reiterates antigun sentiment through rehearsed talking points, lacking substance.Senator Klobuchar sponsored an antigun bill, heralded by Michael Bloomberg’s antigun group, “Everytown for Gun Safety.” Klobuchar suggests she, too, supports the Second Amendment. But, she doesn’t. She asserts, “I would do nothing to hurt hunting”  but she also says she voted for bans on “assault weapons” and on “high-capacity magazines”—those magazines holding over ten rounds.Senators Klobuchar and Franken don’t understand their actions belie their words.Senator Richard Durbin fiercely attacks the Second Amendment. His distaste for the Second Amendment is as virulent and venomous as Feinstein’s.To his shame Senator Durbin defends U.N. efforts to repeal our Country’s unique and sacred Second Amendment. He voted, “no,” on “Amendment SA 2774 to H.R. 2764, the Department of State’s International Aid bill: To prohibit the use of funds by international organizations, agencies, and entities (including the United Nations) that require the registration of, or taxes guns owned by citizens of the United States.” Previously cited. Senator Vitter, Republican-Louisiana, pointed out, that SA 2774 “is about an effort in the United Nations to bring gun control to various countries through that international organization. Unfortunately, that has been an ongoing effort which poses a real threat, back to 1995. In 2001, the UN General Assembly adopted a program of action designed to infringe on second amendment rights. The Vitter amendment simply says we are not going to support any international organization that requires a registration of US citizens' guns or taxes US citizens’ guns.” Previously cited. Plainly, the UN’s bold attack on America’s Bill of Rights doesn’t offend Senator Durbin. He supports UN efforts to undermine our Bill of Rights.Last, let’s not forget, Senator, Chris Coons position on the Second Amendment. Coons urges President Obama to use executive action to undermine the Second Amendment. Imagine, Coons would sacrifice the Second Amendment and Congressional Article 1, Section 1 Legislative authority to the U.S. President simply to continue a partisan antigun agenda.

A PANEL OF GARLAND SUPPORTERS GATHERED TO BUTTRESS ANTIGUN JUDGE MERRICK GARLAND’S NOMINATION

Ranking Senate Judiciary Committee Member Leahy and fellow Senate Democrats on the Committee contacted associates of Judge Merrick Garland. The panel comprised a former jurist, a law professor, an appellate law attorney and former judge, and a former U.S. Attorney.Each spouted the usual praises: “wonderful judge,” “eminently qualified,” “wonderful human being” “engaged and committed parent,” “sharp, analytical mind,” and so on. Fine traits, yes wanted of all who aspire to sit on the high Court. We have heard them before; we hear them now, constantly. But Judge Garland’s finer qualities aren’t in dispute. His judicial record is.The hour-long hearing comprised a multitude of flowery pronouncements, empty oratory, and, from the Senate Democrats, spiteful insults, criticisms, and whispers.Senator Feinstein piously declared a concern over a Supreme Court constrained, “for a substantial period of time” by a “tie,” “a four to four position.” Senator Leahy says the failure of the high Court to act on cases—given the present 4 to 4 tie—places the Federal Appellate Courts “in limbo.” But Leahy’s statement isn’t true. Feinstein’s remarks and Leahy’s lay bare an agenda, underscored by their assertions. They seek a five to four liberal-wing majority on the high Court. They say consistency among the Circuit Courts is necessary, but is it?Do we want consistency if U.S. Supreme Court rulings weaken Americans’ rights and liberties throughout the Country? Do we Americans want consistency among the Several States if U.S. Supreme Court rulings reflect foreign law antithetical to our traditions and values, and inconsistent with our Bill of Rights? Wouldn’t Americans find judicial rulings peppered and laced with alien jurisprudence and philosophy singularly bizarre? Wouldn’t Americans detest U.S. Supreme Court opinion that undermine their rights? Is not the late Justice Antonin Scalia’s philosophy and jurisprudential approach to U.S. Supreme Court decision-making worth preserving? If so, Senator Leahy’s remark we need a “fully functioning [nine Justice] Supreme Court”—with a five-to-four liberal wing majority—is to wrongheaded.Tie votes are not necessarily a bad thing. If a tie vote occurs, the decisions of the Appellate Courts remain valid. Yes, conflicts in the Circuits exist absent a U.S. Supreme Court decision. But conflicts always exist. The high Court hears only a handful of cases. A liberal wing majority would decide cases contrary to the well-being of the Bill of Rights. A liberal wing majority would also canvass cases to hear—cases involving matters best left to the States under the Tenth Amendment. Consider the remarks of Justin Driver, Professor of law at the University of Chicago. He clerked under Judge Garland from 2005 to 2006. Driver said, “The [U.S. Supreme] Court views itself as articulating general applicable principles, not merely resolving a dispute between a few parties.” How do we square that remark with Professor Driver’s other assertions? Professor Driver asserts, Judge Garland “avoids grand sweeping pronouncements, and keeps the opinions narrow,” that Judge Garland “is measured in his approach to the law,” and that “he honors existing precedent”?How might Judge Garland’s jurisprudence as a Judge on the U.S. Court of Appeals for the District of Columbia Circuit translate to the U.S. Supreme Court on Second Amendment issues? A fifth liberal-wing vote would weaken or overturn, outright, the Heller and McDonald case holdings?

A QUESTION ABOUT IDEOLOGY ON THE SUPREME COURT

Senator Leahy and his fellow Democrats on the Judiciary Committee self-righteously assert a hostility toward ideology. They proclaim the U.S. Supreme Court must remain pure, empty of “politics.” Yet, the U.S. Supreme Court, as the third Branch of Government, is, a political institution. Politics exists in the third Branch no less so than in the other two. Ideology, too, exists. Ideology is not necessarily a bad thing. Ideology defines every person. Each jurist espouses an ideology, and that ideology suffuses each jurist’s decisions. Judge Merrick Garland expressed his ideology toward the Second Amendment in the Parker and Reno cases.

JUDGE MERRICK GARLAND MUST NOT SECURE A SEAT ON THE U.S. SUPREME COURT

We know Judge Garland’s position on Second Amendment issues. We looked at his record. With Obama’s nomination of Merrick Garland to the high Court—a jurist who espouses a philosophy hostile to the Second Amendment—the assault on the Second Amendment continues. The Arbalest Quarrel amply shows Garland’s hostility to the Second Amendment in multiple articles.The conclusion is plain. If Judge Merrick Garland secures a seat on the high Court, we know he would undermine the Second Amendment. The high Court’s liberal wing would have a majority and would undo Justice Scalia’s legacy.If Judge Garland sits on the high Court as Justice Garland, the right of the people to keep and bear arms, as a sacred individual right, will come under renewed assault. Protection of our sacred rights and liberties ought to take precedence over presumed Senate protocol. Senator Leahy doesn’t think so, despite his remarks. He insists a confirmation hearing for Garland is proper. Perhaps for him, not for us. Leahy doesn’t speak for most Americans; neither does Hillary Clinton.In a May 24, 2016 editorial, the Wall Street Journal editorial staff said, “Mrs. Clinton did criticize the Supreme Court [in Heller] for being ‘wrong on the Second Amendment.’” The editorial staff also said, “Mrs. Clinton knows that four liberal Justices dissented from Heller. . . . Justice Ruth Bader Ginsburg, one of the dissenters, told a luncheon of the Harvard Club in 2009 that their dissent was crafted with an eye to helping a ‘future, wiser court’ overturn Heller.” Previously cited. The editorial staff added, poignantly, “If Mrs. Clinton selects Antonin Scalia’s replacement, she knows the Court’s liberals with get their opportunity to overturn Heller. The Second Amendment really is on the ballot this November.” Previously cited.Senator Leahy and other Senate Democrats on the Judiciary Committee want a jurist on the high Court who represent their ideology—one antithetical to the Second Amendment. Hillary Clinton won’t disappoint them if elected U.S. President. Judge Garland is their man. He isn’t ours.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

TOM COBURN ADDS HIS NAME TO THE GROWING LIST OF PRESENT AND FORMER REPUBLICANS WHO SAY THE SENATE SHOULD HOLD A VOTE ON GARLAND. THE QUESTION IS: WHY ARE SOME REPUBLICANS CAVING IN?

TOM COBURN ADDS HIS NAME TO THE GROWING LIST OF PRESENT AND FORMER REPUBLICANS WHO SAY THE SENATE SHOULD HOLD A VOTE ON GARLAND. THE QUESTION IS: WHY ARE SOME REPUBLICANS CAVING IN?

“Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” Animal Farm, by George Orwell, 1945Can we be certain that Senate Republicans are dead-set against the confirmation of Judge Merrick Garland to a seat on the U.S. Supreme Court. Well, we know that at least one Senate Republican, Mark Steven Kirk, would like very much to see Obama’s nominee confirmed.This should come as no surprise to anyone; for Senator Kirk, the Republican, is, as we know, a virulent opponent of the right of the American people to keep and bear arms. See the Arbalest Quarrel article, titled, "Senator Kirk Can't Whitewash Merrick Garland; the Record Speaks for Itself."But, what of other Senate Republicans – those who ostensibly support the Second Amendment, such as Senator Lindsey Graham of South Carolina. Well, as we recently pointed out, the Senator made poignantly clear to CNN anchor Kate Bolduan that, if a confirmation is held, Judge Garland will be confirmed. Take a look at the Arbalest Quarrel article, titled, "Read the Fine Print: Garland's Confirmation Under the Microscope."Would that concern Senator Graham, presumably a staunch defender of the Second Amendment? Apparently not. After all, Senator Graham voted to confirm Obama’s first two short-list nominees to the high Court: Sonya Sotomayor, and Elena Kagan. The jurisprudential philosophy of these two Obama nominees is well known, and it is one diametrically opposed to that of Justices Thomas and Alito, and opposed, as well, to the jurisprudential philosophy of the late Justice Scalia.So, then, if Senator Graham harbored any doubts about the qualifications of Justices Sotomayor and Kagan, it obviously was not enough to prevent him from voting for their confirmation to the U.S. Supreme Court. The attitudes of Justices Sotomayor and Kagan toward the Second Amendment are well known and they are contrary to those held by Justices Thomas, Alito, and to the late Justice Scalia.Of course, Senator Graham may have been duped. But that is highly unlikely. He is highly intelligent. Could any United States Senator truly doubt that Obama would nominate a judge to the high Court without having given careful consideration to that person’s jurisprudential philosophy on a range of Constitutional issues and to that person’s methodology for deciding cases and to the impact that person’s jurisprudential philosophy would have on Americans’ fundamental rights through that person's written decisions.Recently, in the New York Times, former Republican Senator Tom Coburn, Oklahoma, added his voice to the growing chorus of seemingly staunch supporters of the Second Amendment who are calling for action on Obama’s nominee, Merrick Garland.Oddly enough, former Republican Senator Coburn says, according to the NY Times, in the article, titled, “Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” that Garland should get a vote but that this should not be taken to mean that Garland should be confirmed.Wait a minute! If Garland gets a vote there exists the possibility that he may be confirmed, and, according to Senator Graham, if Garland gets a vote, he would be confirmed, no doubt about it. So, then, what is the rationale for holding a vote if past and present Republican Senators agree that Garland will be confirmed, notwithstanding their remarks that Garland ought not to be confirmed to a seat on the high Court.Obviously, if there is no vote on the confirmation, Garland cannot be confirmed. It is logically impossible for Garland to be confirmed without a vote of the Senate. But, if Garland cannot possibly be confirmed, then why hold a vote at all? Does the Senate have nothing better to do than to hold a vote on Obama’s nominee to the U.S. Supreme Court if Garland could not possibly be confirmed? The entire vote issue on Garland is a red herring, and should be laid to rest until the next U.S. President assumes Office.If Coburn and others believe a vote on Obama’s nominee is required by law, that is false. While there is debate among legal academicians as to the import of the “advice and consent clause,” one point is abundantly clear, the U.S. President cannot, on his own authority, lawfully, unilaterally appoint a person to the U.S. Supreme Court.If, as is presently the case, the Senate does not consent to the nomination, allowing a vote on the nomination would not be consistent with the consent requirement. In fact there is nothing in the appointment’s clause and in the "advice and consent" clause of Article 2, Section 2 of the U.S. Constitution that discusses the matter of voting on a President’s nominee at all. In the present matter the Senate has spoken. The Senate has advised the President that it does not consent to the nomination of Judge Garland.Now, if Coburn and other like-minded Republicans were to argue that the Senate owes the President a vote on his nominee as a matter of professional courtesy, which, then, has nothing to do with the Senate’s obligation under the “advice and consent” clause well, consider: does the risk of snubbing a President’s nominee outweigh a threat posed to the continued preservation of the Second Amendment? It would seem that Tom Coburn would very much like to see Garland confirmed.As the NY Times reports Coburn saying, “I don’t know if he [Merrick Garland] deserves a hearing. . . . He deserves a vote out of the [Judiciary] committee.” “Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” Really? Coburn appears to be saying, although tacitly, that the Senate should dispense with a public hearing altogether – that the Senate should just hold a closed-door vote, out of the purview of the public. That would be fair? To whom? Certainly not to the American people who have more than a little stake in the matter.The mainstream media and those who call for a hearing, or a vote, or both, constantly carp that the Senate Judiciary Committee’s motivation for denying Garland a hearing and/or vote is simply to be attributed to “politics.” But, that’s mere subterfuge.The Senate Judiciary Committee is well aware that, if Garland receives a vote – whether that vote comes after or in lieu of a hearing – he will be confirmed. The House knows it; the Senate knows it; the President knows it; and the American people know it.If Garland is confirmed, the sanctity of the Second Amendment will be threatened in a manner never before seen. A threat – any feasible threat – to our fundamental rights ought never be casually dismissed as mere “politics.” That is why Senator Grassley’s Judiciary Committee must hold fast and not be swayed by rhetoric coming from surly Democrats, disloyal Republicans, and from the mainstream media that echoes and trumpets their sentiments.Once again, we are drawn back to Orwell’s allegory, "Animal Farm," which has as much application today as it had in Orwell’s time: “No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.”As between those Senate Democrats who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court, Judge Merrick Garland, and those Senate Republicans who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court – as we look at each of them – as we move back and forth among them – one to the other – from Democrat to Republican, and from Republican to Democrat – it becomes increasingly difficult to distinguish between them. So many Senate Democrats and Senate Republicans are looking awfully like one another. Aren’t they?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

VOISINE: A SECOND AMENDMENT CASE THAT ISN'T?

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES VERSUS VOISINE

PART 1: PRELIMINARY REMARKS

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

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.