WHERE DOES THE MOST SERIOUS THREAT TO THE PRESERVATION OF THE FUNDAMENTAL RIGHTS AND LIBERTIES OF AMERICANS REST? FROM CONGRESS? FROM THE PRESS? FROM THE PRESIDENT? FROM ALL THREE TAKEN TOGETHER? THE ANSWER MAY SURPRISE YOU!
KOLBE VS. HOGAN:
The Arbalest Quarrel has been working steadily on a systematic and comprehensive analysis of the Kolbe case. We are taking a short timeout with this segment, subtitled, “Interim Remarks,” to place the substantial time we are devoting to Kolbe in proper perspective. We feel our analysis has singular importance now with the Senate Judiciary Hearings on the Gorsuch confirmation that took place these past few days, and which have concluded. Senate Democrats are now filibustering, to prevent a vote on the confirmation of Judge Gorsuch as Associate Justice on the U.S. Supreme Court.
The Arbalest Quarrel will continue its comprehensive, analytical exposition of the Kolbe case, considering its negative impact on the Second Amendment and considering, as well, the failure of the Fourth Circuit to take proper note of and abide by the rulings and reasoning of the high Court in the seminal Heller case. The high Court provided clear guidance to the lower Courts for the proper handling of Second Amendment cases where government action attacks the core of the Second Amendment.
What is unfortunately abundantly clear now is that lower federal Courts will, at times, ignore rulings and reasoning and guidance of the U.S. Supreme Court if those lower federal Courts do not agree with the methodology, the rulings, the reasoning, and the jurisprudential underpinnings of the law as reflected in specific cases. So it is that we see some United States Circuits ignoring the precepts of Heller. But, regardless of a jurist’s political and social philosophy, precedent must not be ignored. Precedent must never be ignored. All too often as we see, though, judicial precedent is ignored, and it is, not infrequently, ignored in the most important cases: those cases negatively impacting our most sacred rights and liberties.
If anything came out of the Neil Gorsuch confirmation hearings —where Judge Gorsuch had to suffer through days of torturous questioning and insufferable pontificating of Senate Democrats sitting on the Judiciary Committee—the public has come to see that Judge Gorsuch believes fervently in the importance of legal precedent as the cornerstone of our system of laws. This is necessary if our system of laws is not to be reduced to a set of discordant, inconsistent body of law, providing no guidance on which Courts may reasonably rely.
The public has also seen that Judge Gorsuch gives credence to the law enacted by Congress, as written. Judge Gorsuch does not allow personal feeling to sway his rulings. That seems to bother some members of the Senate Judiciary Committee. It should, though, give the public hope. For, the public can rest assured that Judge Gorsuch, sitting on the high Court as an Associate Justice, will demonstrate proper restraint—applying the law to the facts as that law exists, and not as he may, perhaps, rather like the law to be.
What the law ought to be is subject matter for legal and political philosophical musings set down in essays. When a judge opines on a case before that judge, the jurist is not to render judgment on what the law ought to be but must predicate his or her rulings on what the state of the law is, and elucidate findings of fact and conclusions of law on that basis and on that basis alone. Frankly, all too often we do not see this. The worst and most dangerous example of improper legal judgment is judgment reflected in personal feeling peppered, if only tacitly, but unmistakably, in legal opinions—personal feeling overriding judicial restraint in matters directly impacting the Bill of Rights, not least of which, we see on the continued assault against the clear meaning and purpose of the Second Amendment.
The rabid assault on the sanctity of the Second Amendment to the U.S. Constitution continues unabated notwithstanding the clear reasoning of and holdings in the Heller case. But, where do the greatest and gravest threats rest?
Contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the assertive, pretentious, sanctimonious, noxious rhetorical flourishes and rancor of some elected officials who disdainfully, arrogantly voice their antipathy toward the Second Amendment—even if that rancor is masked through the obligatory assertion, “but of course I support the Second Amendment,” as if, through the addition of that assertion to the official’s polemic, the elected official may effectively hide his or her clear distaste toward the very idea that the average, law-abiding, rational, American citizen—not working as a policeman, or as a soldier, or as a licensed bodyguard, or as a government or private security officer, or in some unknown, secretive governmental capacity, but merely, solely as a civilian—should actually ever be armed with—horror of horrors—a firearm.
And, contrary to popular opinion on the matter, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests less upon the loud, vociferous, discordant voice of writers, editors, and owners of mainstream media whose antipathy toward the right of the people to keep and bear arms is well-known by the public, and is at once both longstanding and supremely malevolent.
Rather, the greatest threat to our Bill of Rights, generally, and the gravest danger to our Second Amendment, particularly, rests more on the actions of activist Jurists of the federal District and Circuit Courts whose arcane opinions, seemingly well-learned and well-reasoned, merely obscure an intent to defeat the Second Amendment despite clear guidance from the U.S. Supreme Court.
The threat posed by an activist Judiciary to the preservation of our basic liberties, as envisioned by the founders of our Free Republic is very real, not to be reasonably denied. And that threat posed to our Second Amendment right of the people to keep and bear arms is ultimately greater than that posed by either a recalcitrant Congress or a derelict Press.
The danger posed by an activist Judiciary is greater and graver to our sacred rights and liberties because the Judiciary is the final arbiter of what our law means and, therefore, how the law impacts our lives.
As our Constitution sets forth, Congress makes the law we live by. The Executive enforces the law that Congress enacts. But, as the grand interpreter of the law—what the law means and whether the law is consistent with the U.S. Constitution—whether a law shall operate at all, and, if so, the effect it has on our lives—it is for the Judiciary to say. It is not for Congress to say; and it is not for the U.S. President to say; and it is certainly, not for the Press to tell the American people what the law of the Land is.
No! The Judiciary, alone, is the final arbiter of what the law is. Some may think the Judiciary wields less power than the two other Branches of Government. After all, the Judiciary does not have the power of the purse, which, along with the unequivocal and singular power to make law, exists in Congress alone. The Judiciary does not wield power over the military, or over the federal police agencies, or over the vast intelligence apparatuses, all of which fall within the direct purview of the Executive. But, as the final arbiter of our law—what the law means and how the law is to be applied—assuming we remain a Nation ruled by law, truly ruled by law, and not by men—no American should underestimate the power the Judiciary wields over our lives.
Even the most uninformed citizens among us knows full well the power of the Judiciary in the matter of immigration. That has been on full display. That power can and, most recently has tied the hands of the U.S. President, as Commander in Chief of our Nation, taxed with the singular duty to protect the People of our great Nation from all threats both foreign and domestic.
President Donald Trump, promising to do his best to defend this Nation against imminent and serious threat posed by Islamic terrorists —clearly among his most important duties as U.S. President—has been constrained and frustrated in that effort due to the machinations of the U.S. Court of Appeals for the Ninth Circuit and thereafter by the U.S. District Court of Hawaii—Courts that have, through their actions, placed the welfare of this Nation and the physical safety of its citizens at considerable risk as those Courts, through their opinions, demonstrate that the wishes of non-citizens who seek to emigrate to America from failed States are to be given more consideration than are the health and well-being of this Nation and the physical safety of American citizens. And, it doesn’t stop there, with immigration.
Activist U.S. District Court and U.S. Circuit Court of Appeals judges express their disdain of the Second Amendment and their continued defiance of the U.S. Supreme Court through decisions that rein in the right of the people to keep and bear arms. They denigrate the import and purport of our Second Amendment through manipulation of legal doctrine.
If our pronouncement be undiplomatic, untactful toward the Judiciary, so be it. This is not a time for niceties. For the decisions of the Judiciary—the words expressed in opinions—are proof of political activism that strike at the heart of the health, welfare, and safety of our Nation and at the import and purport of our Bill of Rights.
No less has the Fourth Circuit, in our estimate, manipulated legal doctrine, in denigration of U.S. Supreme Court precedent. Obscuring opinion in arcane legalese does little to disguise the fact that legal opinions coming out of this Circuit in the recent Kolbe case are antithetical to and involve a misunderstanding—whether consciously deliberate or incautiously but honestly mistaken—of the rulings and reasoning of the Heller Court.
The Fourth Circuit relies for support, in part, on similar rulings of its sister Courts, most notably, those of the Second, Third, Seventh, and Ninth Circuits. By relying for support on opinions of their sister Courts, the Fourth Circuit aims, it seems to us, to deflect honest criticism away from itself, thereby suggesting that similar rulings of these other Courts that belie the rulings, reasoning, and clear guidance of the majority opinion, penned by Justice Scalia, in Heller, do somehow demonstrate that the Fourth Circuit does give due consideration to the holdings and reasoning of Heller, rather than contradicting the holdings and reasoning of that seminal Second Amendment case. But that is not the case at all.
We firmly believe—as we have explained and will elucidate yet further—the Fourth Circuit Court of Appeals, en banc, having taken its cue from the U.S. District Court of Maryland and from the opinions of various sister Courts, strained to find a loophole in the Heller case to justify finding Maryland’s Firearm Safety Act to be legal. There isn’t any. So, the Fourth Circuit created one out of whole cloth.
The gravest error of the Courts of the Fourth Circuit consists in the application of a standard of review that the Heller Court specifically rejected. Proceeding from an improper footing, an erroneous decision—but one the Fourth Circuit obviously wanted—could not but follow from the application of the wrong standard.
Happy the Fourth Circuit would be, as would other United States Circuit Courts that elicit similar sympathies, if Heller were simply overturned. Were Judge Merrick Garland to have sat on the high Court, that pipedream for the antigun movement would come to pass. There is no doubt about that. Clearly, that was one end that Barack Obama had in mind which is why he nominated Merrick Garland to Associate Justice of the U.S. Supreme Court. It was one end that Hillary Clinton would have had in mind were she to have been elected U.S. President. For, she would certainly have been elated to sit Judge Garland on the high Court. Thankfully, neither the previous U.S. President or the one who would be Queen will never get their wish.
If Judge Neil Gorsuch is confirmed and he should be and undoubtedly will be—despite a Democratic threat of filibuster of his confirmation which is now unfolding—the Heller case should remain untouched—even if ignored by various Circuit Courts as we see in Kolbe.
Heller is the first case that extends—albeit tacitly—the idea that, where the very core of a fundamental right is attacked in a government action—a facial challenge to that governmental action will be given proper consideration.
The U.S. Supreme Court made clear enough in Heller, to the surprise and, we are sure, much to the consternation of the D.C. Government and to the U.S. Circuit Court of Appeals for the District of Columbia, that the U.S. Supreme Court would not shrink from applying facial challenge methodology to an action by government that attacks the core of the Second Amendment even if that had not previously been done. We should see that methodology applied as well in Kolbe if Kolbe or a similar case is heard by the U.S. Supreme Court. We hope and trust and pray that Judge Gorsuch sits on the high Court as the Ninth Justice when this happens.
We continue with our analysis of the Kolbe case with Part Five of our multi-series article, to be posted shortly.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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Absolutely, judicial activism is a huge problem. Much precedent has been set by activist judges in their pursuit of an agenda. To say “Precedent must never be ignored” however, is no solution. Without ignoring precedent, would the Heller decision have been rendered? If precedent isn’t ignored will Wickard v Filburn ever be overturned? I’m convinced the solution lies not in the courts at all, or the Congress or Executive, but in the willingness of the States to use nullification.
Thank you for your reasoned response. But, I have to controvert the idea suggested in your question that Heller may have ignored U.S. Supreme Court precedent. That isn’t true. The U.S. Supreme Court is very careful in adhering to its own precedent. The Court would never ignore precedent for that would be tantamount to tacitly overruling itself, that is to say, overturning its own prior holdings. That is not to say the U.S. Supreme Court has never overturned prior holdings. It has. But when it does so, it says so; and it explains why it is doing so. It is no secret that several Justices on the U.S. Supreme Court are not at all happy with the Heller holdings, as reflected in the dissenting opinions, and those Justices would, given the chance, choose either to overturnHeller outright or, at least, seek to slowly strip Heller of its significance.
Furthermore, when precedent doesn’t exist in case law, the high Court will render judgment as first impression, but first impression, predicated on well-reasoned and well-supported argument. In Heller, one of the key novel–that is to say–precedent setting holdings is that the Second Amendment right of the people to keep and bear arms sets forth an “individual right.” It is much much more than a mere “collective right.” But the idea that the Second Amendment speaks of an “individual right” is an idea that is anathema to the left-wing of the high Court. Yet, previous Second Amendment cases before the high Court have never clearly articulated that precept one way or the other. Hence, there was no precedent. Had there been high Court precedent setting forth that the Second Amendment right of the people to keep and bear arms articulates only a “collective right,” not an “individual right,” then the majority in Heller would have been compelled to acknowledge that precedent and would then expressly declare that the previous precedent was now overruled and overruled predicated on error that Heller now rectified. In Heller,, though, the U.S. Supreme Court was not overruling prior precedent because, once again, there was no precedent.
Heller, thus, established precedent, which the high Court is free to do and we must say that this case-setting precedent was long overdue as Justice Scalia, writing for the majority in Heller, wasn’t articulating something about the Second Amendment that was untrue. To the contrary, he was simply articulating the clear meaning of the Second Amendment and the majority of Justices concurred in that meaning. The left-wing did not though. the left-wing of the high Court does not accept the clear import of the Second Amendment because–and I think it is fair to say even if the following point seems simplistic and perfunctory–they don’t like the Second Amendment. But, no Court is empowered to repeal fundamental rights codified in our Bill of Rights. And, we are thankful for that. But, obviously, in their decisions, they wield considerable power, through “interpretation of the law,” to strengthen or weaken the impact of a given law and they wield considerable power in weakening or strengthening a fundamental right, through their interpretation of meaning of that right. By weakening a law or by weakening a fundamental right, a Court’s action may lead ultimately to a de facto repeal of it. But, for de jure, actual repeal of fundamental rights there are Constitutional mechanisms in place. There are Constitutional mechanisms in place for repealing the Second Amendment or for repealing any other Amendment. But, application of those mechanisms are extraordinary and repeal of a Constitutional Amendment is extremely difficult to accomplish and that is as the founders of our free Republic wisely intended. But, as long as this Nation exists as a free Republic, the Bill of Rights will never be repealed, either in part or in total. That is not to say that the an American’s exercise of his or her sacred rights and the Government’s duty to forbear from attacking our liberties are not slowly being eroded either through Judicial action, Executive action, or Legislative action. As our Second Amendment right has been slowly whittled away, the Heller decision was most remarkable in propping it back up–a bold, but necessary action. And the U.S. Supreme Court majority is to be commended for having the will to do so–not so easy to contemplate in this Age of Liberal Democracy–a code expression for dismantling of the Nation State, as exemplified in the very existence of the European Union.
Even so, many federal Courts–most recently, the Fourth Circuit in Kolbe–stands in defiance to Heller even if the Fourth Circuit denies that fact, since denying that fact the Court must. But, the decision of the Fourth Circuit makes abundantly clear the antipathy it has toward the Second Amendment and toward the Heller decision. Our comprehensive set of articles exposes the truth of and extent of and manner of that antipathy toward the Second Amendment and toward the U.S. Supreme Court’s Heller decision. It is also sad to see that our “Press,” which our Founders gave extensive freedom to, uses its extensive power not to strengthen our rights and liberties but to weaken them. “The Press”–as exemplified in the mainstream media–has declared, in particular, its open hostility toward the First Amendment’s freedom of speech (except for itself and for those “voices” that adhere to the same social and political philosophy) and open hostility toward the Second Amendment. The Press seems unconcerned about the “unreasonable searches and seizures” clause of the Fourth Amendment, too. That should not be surprising, as “the Press” has become a propaganda tool of and for “the Deep State.”
Ultimately, it is for the Judiciary to keep the other two Branches of Government and “the Press” “in check” if this Nation is to survive as our Founders, in their wisdom, intended it. President Trump has an opportunity to nominate Jurists that truly love and respect our system of laws, and our Constitution and who truly intend to see that our system of laws and our Constitution do not become weakened and corrupted.
As to your last point, that the solution to correcting constant erosion of our Bill of Rights rests with the States’ use of “nullification” requires explication. I am unfamiliar with the Wickard case that you refer to, but I will take a look when I get a chance and get back to you on that.
Excellent article, but I take issue with one point made by the author(s): the U.S. President is NOT the “Commander in Chief of our Nation.”
When I was in the military, the President was my Commander in Chief (regardless of my feelings toward their politics). Now that I am once again a civilian – not in the service of our federal government’s Executive Branch, the President holds no such authority over me. Unless, of course, I am called back into Service of the United States as a member of the (unorganized) militia.
I see this phrase used often, across the political spectrum, and cringe each time because I believe it shows a fundamental lack of understanding of the President’s powers granted within the Constitution.
Mike, thank you for taking the time to clarify an abstruse point. After reviewing your comment, I did some legal research on the meaning of “Commander in Chief” in respect to the President’s authority, as outlined in our Constitution. One legal scholar pointing to a remark made by Alexander Hamilton, says, “The President can direct and manage warfare, however, the only Commander in Chief power that Congress cannot override is the President’s power to command: to be, in ‘Alexander Hamilton’s words, the nation’s “first General and Admiral.'” See, “Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” 69 Ohio St. L.J. 391, 392 (2008), by Jules Lobel, Professor of Law, University of Pittsburgh, quoting from “The Federalist No. 69,” at 465 (Alexander Hamilton) (Jacob Cooke ed., 1961). That said, you do have a point. Alexander Hamilton’s remark may easily be taken out of context if the statement is taken to suggest that the U.S. President, as Commander in Chief, can, under Article II, constitutionally, always truly command the civilian population in the same manner he commands the military. If not, then, in wielding Article II powers over the Armed Forces, your question goes to the issue whether the President is ever able, lawfully,to take preemptive “military command” measures over the civilian population, specifically in his role as Commander in Chief–let us say, if he does so for National Security purposes. This is, I think, a gray area. And, as the purported “War on Terror” escalates, presumably to encompass the geographical boundaries of the United States, the question is this: can the U.S. President qua Commander in Chief, take command, in a true military sense, over American citizens qua civilians through, as a prime example, the instrumentality of Executive Actions and Directives. If so, I argue, as you, I think, would agree, that this would be an egregious exercise of power and one extremely dangerous to the continued preservation of our sacred rights and liberties and, therefore, clearly outside Article II powers of the U.S. President. Yet, we do see expansive powers exercised by the U.S. President, commencing with George W. Bush, and Barack Obama.
For my part, I do not wish my statement to be taken to mean that the U.S. President can ever, under our Constitution, legitimately govern the civilian population in the manner that he commands the military. If my statement entails that conclusion, then I admit error in the assertion that erroneously may suggest that.