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Maybe we should quit celebrating the 4th of July and start celebrating the 28th of June.
Today has been a complex and interesting day at the intersection of America and Freedom. We witnessed another fundamental right incorporated against the states, an enemy of freedom die, and another enemy of freedom approach the same court that confirmed the fundamental right that weaves its way through these varied news items.
Thank Gawd for Jack Daniels, the all purpose tool for celebrations and relieving dull headaches from dumpster diving into constitutional law, politics and other unsavory pursuits.
Foremost is the Supreme’s decision in the case of old man McDonald of Chicago, who lives in a crime infested neighborhood in a crime infested city replete with a crime infested government. Chicago would not let this kindly codger own a pistol for fear he might shoot a criminal, or even someone who didn’t hold office. Two years ago (Heller case) the Supreme Court ruled that the right to keep and bear arms, oddly enough, protected a right to keep and bear arms. Only imbeciles (and by this I mean Justice Breyer) failed to grasp English and concluded otherwise.
But that decision did not address if the stated right applied to anything but federal territories – the folks in Guam were elated, and people in Chicago were rightly jealous. Old man McDonald argued that like the rights to speech, religion, assembly, press, due process, self-incrimination, public trial, council, trail by jury, reasonable bail and not being beaten up by cops, the right to own a heater could also not be denied by whatever Al Capone descendents were running the local patronage parlor. McDonald’s argument presented a bit of a conundrum to liberal political activists (Ginsberg, Stevens, Breyer, Sotomayor and their intellectual equals Larry, Curly and Moe): The court had previously prevented unlisted rights, such as the right to privacy, from being infringed upon by lower levels of government. Ruling that a clearly stated, enumerated right was not equally protected meant that most of the social liberal enactments of the last 100 years could evaporate in a puff of illogic.
Which is what they tried anyway, launching a thousand mocks.
Court Jester Stevens went into a rambling discourse of irrelevancy that departed jurisprudence and entered the realm of science fiction. In a rare instance of judicial bitch slapping, Justice Scalia rhetorically mugged Stevens for the latter’s flagrant display of senile dementia. In words and tone that were openly derogatory – which is relatively unknown in the decorum of the court – Scalia excoriated Stevens and thus gave the old codger a swift kick in his retiring tokus. Scalia wrote about Stevens’ dissent “The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason.”
This is one judge’s way of saying to another “Your mama!”
Odder than Stevens (a notion that is nearly incomprehensible) was Breyer (who is always incomprehensible). Breyer squanders his script rearguing the Heller case of two years before, establishing nothing new and picking a fight with the prevailing majority of the court. This I find amusing for in all confirmation hearings it is the liberal bank of the Senate who grill potential justices on stare decisis, the doctrine that existing decisions should stand lest the judicial activism of the last century vanish due to constitutional fidelity. If stare decisis is indeed a desirable mandate, why then is a liberal judge trying to unilaterally invalidate a recent court ruling? Doing so seems to indicate that stare decisis is about as healthy and robust as Ted Kennedy (oh, too soon?)
Buried in this muddle of con law mastication is the corner case of how to keep states from telling old black men they cannot shoot Crips gang members breaking into their homes. The 14th Amendment was written to assure that a federal freedom was also a state freedom, and was done so because after the civil war a lot of disgruntled Democrats were routinely robbing free black men of the freedoms they had just received, typically first by disarming them, and then by stretching their necks. For reasons too laborious to delineate, the better of two clauses in the 14th Amendment was invalidated by the courts as the means for keeping disgruntled Democrats from re-enslaving black folk (“privileges and immunities” clause and the Slaughterhouse Cases for people with autodidactic masochistic streaks). Despite the wrongheaded reasoning in the Slaughterhouse Cases, stare decisis (there’s that dirty word again) required that the court ignore pleas made by McDonald to keep Chicago politicians out of private gun safes. Justice Thomas, an old black man whose parents were not lynched, took it upon himself to write a concurring opinion to educate the court that their previous ruling about the privileges and immunities clause was as coherent as Justice Stevens, which is not at all. Since the 14th Amendment and the privileges and immunities clause were written specifically to keep Justice Thomas’ ancestors from being becoming strange fruit, he may well have had very personal reasons for suggesting that stare decisis be a little less rigid and that Supreme Stupidity be subject to review. It might just keep the Ku Klux Klan from getting uppity.
Of course, that will be more difficult with its reduced membership.
While freedom was being expanded by the Supremes, a supremacist stopped breathing. Senator Robert Byrd of West Virginia (where the state flower is the satellite dish) was the oldest living and longest serving senator and Klan member. Through the latter half of his career – when being a racist was out of vogue – he made feeble excuses for having joined the Klan. Byrd enjoyed expanding the power of the federal government and recklessly spending money, which made him a liberal and got him a seat at the leftist table next to Barbara Lee (there is a dinner conversation I would have enjoyed overhearing). This put the liberal establishment in the odd position of apologizing for and praising Byrd while campaigning in black neighborhoods.
We cannot whittle a fine enough point with which to poke Byrd’s corpse. It is not like the Ku Klux Klan has an obscure brand – when you join you pretty much know the group’s policy and you agree with it. Claiming, as Byrd did, that joining the Klan was a youthful mistake is like joining the local cannabis club and later being horrified that the members there actually smoke the stuff. Byrd was a racist – period – and those who make excuses for him are as well.
Amusingly odd then is that on a day when a free black man in a black robe is vigorously defending a constitutional clause designed to promote the liberties of free blacks, that a man who openly sought to keep minorities in servitude goes to God to argue his own case. This explains why the temperature got a little warmer this morning. Hell has one more log on the fire.
The last leg of today’s con law carnival is the opening hearings on Elena Kagan, Barack Obama’s latest insult to America. Now Kagan may be a nice human, but like Obama, she is a proponent of judges redefining the express written will of the American people (a.k.a. The Constitution). Like his last nominee – who today voted against the right of blacks to own guns – Kagan has no desire to obey The People. Along with Sotomayor, she has openly said that she is unsympathetic to the notion that there is an individual right in the Second Amendment (you know, the one that says ‘the right of the people to keep and bear arms …’). She was also an instrumental actor in Bill Clinton’s campaign to increase gun control.
I bet she even believes in stare decisis … when it suits her.
The key to disallowing Kagan onto the court is that The People have the right and privilege of knowing with reasonable certainty how a justice will rule, and this requires some judicial history of which Kagan, an academic, has none. Without such insights, elevating anyone to the Supremes is a crap shoot and you end-up with people holding the judicial stability of Justice Stevens (and he had the benefit of being a lower court judge). Such judges, like the four who wanted to keep an old black man in Chicago disarmed, subject people to the same dangers that Dixicrats always inflict.
Hmmmm. Does Kagan’s robe come with a matching hood?
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