Cowboy Confessional

The ability to laugh remove can remove pain … mainly by preventing us from telling people what we really think about them.

A book I’m peddling to publishers titled Catalog of Canards describes how political lies are created and spread. My tongue-in-cheek prose help mollify the reader who otherwise would self-destruct from anger inflicted by the realization of how thoroughly hoodwinked they have been. In outlining the book I was reasonably sure that I described nearly every form of fib in the dirty dregs of democracy.

I may be wrong.

Attending a meeting of the American Constitution Society — a conclave of left-wing people interested in rigging the judiciary to defeat the will of the people — I heard a form of lie that I am uncertain how to codify. The panel composed of law professors and civil rights litigators (including a lone libertarian from the Pacific Legal Foundation) opened their review of the 2007/2008 Supreme Court season with a discussion of D.C. v. Heller, the now famous gun ban case.

The discussion was academic, which was entertaining for a constitutional autodidact like myself (incidentally, never use the word autodidact when speaking to your congressional representative … I did that to mine and his limited intellect kept him from understanding the concept). Most commentators conducted light ridicule of the majority decision in the case, disliking a ruling that said the Second Amendment does secure an individual right.

A seeming sane legal strumpet from Stanford lobbed a lie which I’m still struggling to classify. In referring to the Heller decision she claimed the court “created a new right.”

If I wanted to torture my readers, I could wax for hours on the nature of reserved rights, preexisting rights, 10th Amendment prerogative and any number of conlaw constructions confirming that everything in the Bill of Rights was purposefully composed and ratified to document sacrosanct individual rights jealously guarded by “the people.” It is mechanically impossible for a judge to create a new right since the basic theory of the American legal system is that all rights are reserved by the people and that we grant government select powers in order to maintain a more-or-less civil society.

That someone so clueless teaches law should scare everyone.

So I’m stuck. Throughout my book I cite the various forms of falsehoods as the lie of … For example, when the media omits pertinent information from a news story it is called The Lie of Context. The Stanford professor’s perjury is difficult to classify. It is in essence Orwellian but defies even George’s subterfuge schema.

Suggestions for a codification are welcome.

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The United States Supreme Court has ruled that executing a man who rapes a child is unconstitutional. They believe that the “cruel and unusual” clause of the Constitution forbids such penalties because in relationship to the crime, the punishment would be disproportionate.

I agree that the punishment is disproportionate. Death is too lenient. Drawn and quartered comes closer to parity.

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Oral arguments before the Supreme Court are a nasty business. Judicial disposition falls along these lines:

1) Some justices made up their minds on the case long before oral arguments commence, and they ask questions designed to hammer on the opposing viewpoint or to lead the witness for the position they favor.

2) Others relish the role of the devil’s advocate and ask hard questions of both sides.

3) The rest just cut to the chase and focus on the core issue, challenging everyone to argue against the express written will of the American people.

Today the Supremes (depending on their disposition) heard or ignored arguments in the Heller Case, the Washington D.C. gun ban. The consensus among all of us who listened to the arguments is “we still don’t know how this is going to pan out.”

Crap.

All the Justices — who said anything at all — dug into the myriad of peripheral issues in a devil’s dance that frustrated folks like me. They asked questions concerning if any right can be “reasonably” regulated. The general demeanour of the Justices appears to be that none of the robbed intelligentsia are against the idea of reasonable regulation, though they may debate what in the Sam Hell “reasonable” means.

The only exception was the new Chief Justice, Roberts. While all about him argued about to apply the long and tangled history and different levels of 1st Amendment scrutiny to the 2nd Amendment, Roberts suggested that was inappropriate. With the 2nd Amendment he is willing to “starting afresh” and let the various courts determine fresh Hells as to the mechanics of scrutiny over guns. This is both good and bad for the people of Washington. It indicates Roberts would be willing to confirm the individual right to arms and cause the lower courts to be creative in reviewing the law yet again.

Roberts did ask the blunt question — “What is ‘reasonable’ about a total ban? … Is a reasonable ban on books permissible?”

Ginsberg, in her growing senile dementia, brought-up state bans on machine guns as a proxy for the ‘reasonable’ ban angle. She’ll vote against the people, as she tends to do, favoring the statist approach to all things mortal. She tried to hammer the 2nd Amendment into the mold of the English Bill of Rights and how it expresses a right of their people to own guns, but only under the complete legislative control of Parliament. Ginsberg handily is ignoring that part of the reason we killed Tory soldiers so long ago was because Parliament tried at various times to disarm us. Her judicial myopia also shields her from the basic understanding that legislating away a right means that the right never actually existed.

The news does not get better as every justice – in some way or another – brought the “reasonable regulation” argument to the table. The fix is in and we will likely get an affirmative ruling upholding the individual right, which from this point on will be micro-managed by the courts. In our federated system that means people in one region will live under a different set of rule than others until the Supreme’s adjudicate each nuance.

Sorry guys. The fight has just begun and will last long after they have shoveled dirt on our faces.

Interesting was to see how ineptly both the City of D.C. and Heller’s lawyers buggered their case, and how Justice Kennedy showed that he intends to be the swing vote. Kennedy interrupted the D.C. shyster early on, challenging the basic premise of the city’s argument. Yet later Kennedy forced Heller’s lawyer to base his defense from an adverse set of assumptions.

Kennedy did note that the 1939 Miller case resulted in “an abbreviated decision” that does not address the original intent of the 2nd Amendment, and that he will not likely use it as guidance in this case. I heard no support for Miller from the bench, so it looks like we will have a fairly clean ruling.

Justice Scalia came out as an individual rights defender, and perhaps the best prepared of the judges. While the city’s attorney was arguing that the entirety of the 2nd Amendment dealt only with the militia, Scalia exposed that false duality noting “The two clauses go together beautifully” and later suggesting that “the second clause goes beyond the first.” He referred to Blackstone’s commentaries that concluded there was a “personal guarantee to self protection” involved. Roberts immediately chimed in that Blackstone’s observations work against the D.C. “militia only” focus.

At one point the Solicitor General claimed that “the RTKABA always coexisted with reasonable regulation” as with regulation of speech. Scalia pushed back, noting that it is reasonable to regulate liable (i.e., intentional damage) but that the regulation of speech pretty much stops there. This has always been the contention of individual rights theorists – that you can regulate endangering behavior, but not peaceable behavior. Breyer tried to parlay around this principle. He brought-up colonial-period Boston fire ordinances (that limited where one could keep gunpowder in a residential building to keep from immolating everyone therein) as a local reasonable regulation, contrasting it with crime control today. Heller’s attorney screwed-up by not noting the endangering/peaceable boundary that demarks appropriate government interference. He recovered his bearing later, but Breyer let him swallow the bait and then yanked the line hard.

After Scalia, Alito might have been the best prepared. He brought-up a self-contradiction in the arguments of the city – that federal control over the militia obliterates the individual rights guarantee if the government can redefine who is or isn’t a member of the militia. Hence the 2nd Amendment cannot logically be considered a device to ensure state militia functions as they define who is the militia (hence no rational reason to include the 2nd Amendment at all if all it does is redundantly create a government power).

Two points Sammy! This is the fatal trap of the collectivist theory of the 2nd Amendment.

To the ongoing “reasonable regulation” aspect of the orals, Scalia noted that owning a handgun is common activity among people throughout the country. Thus banning handguns might be an unreasonable definition of ‘reasonable’.

Souter sloppily tried to amplify DC’s argument (indicating he’ll support the collectivist view). We can expect no less given how he eliminated our property rights in the Kelo case. Expect Souter to continue being the American Judas.

Later on, Souter observes that the arguments by the Solicitor General’s (another man of suspect character) on how ‘keep’ confirms an individual right, but ponders about the “further reference to ‘bear’.” The Solicitor General claimed that “bearing” is widely accepted as applying to hunting as well as military context, and argues against DC’s position that “bear” is strictly about militia. Scalia backs the notion that all private uses of firearms fall under ‘bearing’, noting that the language England used to disarm the Scotts and Catholics was to forbid them to “bear” arms.

The Solicitor General slyly noted that “no words in the Constitution are surplusage.”

Souter observed that the Solicitor General arguments on “keep” as an independent right, but pondered about the “further reference to bear”. The Solicitor General said “bearing” is accepted as applying to hunting as well as military context and argued against D.C.’s position that “bear” is strictly about military carrying or weapons.

Breyer surprised me. He clearly took the position that there is a dual purpose within the 2nd Amendment and bluntly asked D.C.’s lawyer to defend how a ban could be defensible in that light. The city’s attorney blinked, and could not lucidly defend his own position. Later, Justice Stevens asks the Solicitor General if the 2nd Amendment codifies one or two rights, to which he basically replied ‘both’.

The Solicitor General is not our friend. Throughout he argues in favor of the reasonable regulation aspects, and completely misrepresents existing laws on the control of machine guns, and brings to the foreground the ever fake “plastic gun” as another case in point. This man needs to be fired … or fired upon.

The Solicitor General did mention his belief Madison, in composing the 2nd Amendment, was applying it to the enumerated limits of government powers within the constitution, and not the militia organization power clause. This makes sense given that there is no need for a separate amendment to support an enumerated legislative power. Hence the 2nd Amendment had to be not in support of the power of the government to organize the militia, but as a defense for the people.

There is more, but it delves into areas of con law and irrelevancy not worth rehashing here. The big question is “how will they vote.”

From the oral arguments and some insights into the general dispositions of the varied judges, here is what I’m willing to wager.

So you see kids, we have a couple of agonizing months ahead of us. Our rights hang by a single vote on both the core rights question, and the ability to defend that right from judicial and legislative tinkering. Get out your prayer beads.

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The test of a nation comes when its established principles are challenged and survive.

Today the United States Supreme Court accepted the Heller (formerly Parker) case, which is a pure test of the intent and original meaning of the constitution’s Second Amendment. This provision, poorly authored as it may have been, preserves the right of the average citizen to own (i.e. “keep”) and use (i.e. “bear”) arms.

I’ve written about this case and Second Amendment origins often enough, so today I want to explore this notion of protecting principles. Oft cited originalism for the Second Amendment shows it was considered a “natural right”, one that was inherent in the act of being (the founding fathers alternately attributed the right as God given, but God has not proffered an opinion on the Heller case, so his opinion is irrelevant).

Indeed, many rights embedded in the Constitution of of that ilk. It was and still is believed that for any sense of freedom to exists, certain rights must be preserved, even when they are generally unpopular (with upwards of 50% of all U.S. homes owning one or more firearms, the right seems to be very popular — certainly more popular than any television program on which Rosie O’Donnell appears). This includes instances of free speech that are patently offensive (but enough about any televised utterance from Rosie O’Donnell).

Take the Ku Klux Klan … and take them far, far away please. It is difficult to conceive of any form of speech more objectionable than the blathering of a Grand Wizard or similarly syphilitic intellect. Yet if I did not defend the right of Klansman to spew their perturbed pondering, then by default I grant the government the right to censor this blog, an occurrence that would make certain detractors delirious with glee, but which would certain ignite a second American revolution.

The Heller case then becomes not a test of gun control — that is the side show. It is a test to determine if the fundamental philosophy of a nation will be preserved. The founding question in this case is “do natural rights exist and are they sacred above the control of the national government?” Were the Supremes to rule against the individual rights theory of firearm ownership, they would be ruling against the very ideology of the nation and thus against the nation itself.

The Heller case is thus a pivotal moment in American history. The outcome will determine if the United States, as originally conceived, will continue, or if it will slowly parish under the vagaries of the judicial branch.

Choose wisely Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer and Alito.

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The meanderings of the Parker (now Heller) case is enough to confuse God, were he paying attention.

For people distracted by American Idol and other drivel, the Parker cum Heller case is perhaps the single most important test of constitutional originalism to reach the ears of the Supreme Court since … well, since before I was born. The case pitted a few Washington D.C. residents against the city itself. The local government (you know, the one with coke snorting mayors) deigned that no resident should possess a working firearm. Somehow word of this legislation never reached the projects, where shooting your neighbor is such a routine event that it is listed in the Sunday church antisocial calendar.

So, Parker, Heller and a few other citizens — who wanted to arm themselves in self defense against the thugs who had already armed themselves — sued the city on the basis that the 2nd Amendment of the U.S. constitution said they could “keep and bear arms.” Such straightforward language, being foreign to the ears of D.C. politicians and others in the whoring caste, was naturally refuted. Parker, Heller, et all fought the local law and won.

The basis and initial lower court ruling are straight forward:

1. Washington D.C. bans handgun ownership, and forces citizens to make even long guns inoperative
2. The 2nd Amendment consecrates an individual right to own a gun
3. The court told D.C. to print out their gun ban rules, roll them up, and insert them into that dark hole where politicians reside

With fanfare heretofore reserved for marching bands and young men boasting of first time sex, D.C. politicians said they would appeal to the Supreme Court, and then proceeded to submit the weakest appeal possible. In fact their own appeal is filled with misinformation about the nature and letter of their own laws. The mad clan at the Volokh Conspiracy made note of this, the relevant blurbs being:

But when DC filed its petition, the petition flagrantly violated DC’s representations to the Court of Appeals. DC’s petition for a writ of certiorari presents one, and only one question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” This question of course addresses the handgun ban, but does not address the separate holding of the ban on defensive long guns. By Supreme Court rules, the DC petition was required to list all statutes or ordinances which are at issue in the petition, and the DC petition does not list the ordinance containing the self-defense ban.

Instead, DC falsely told the Court that a person in DC “may lawfully possess a rifle or shotgun to protect himself.”

D.C.’s lawyers are not idiots, despite the evidence provided in their oral arguments before the lower court. So this horrific appeal for writ of cert is confounding at first glance.

At second glance, it may well be a smart way to dodge a metaphorical bullet. I predicted as much last May.

I am told by some constitutional law professors that the Supremes are picky people. They do not take “dirty” cases with unresolved extenuation. When the city sloppily appealed their case, they gave the court ample reason to not write a writ. At least four justices have to agree that a writ of cert is warranted. Rigging the appeal as D.C.’s lawyers did gives activist judges reason to refuse the case and in so avoid risking a majority ruling in favor of an individual right to arms.

Sneaky. But the opposing legal team — the ones who engineered this elegant test of the constitution — were on the ball. In written arguments they addressed the calculated inconsistencies proffered by the District, and in addressing them may well eliminate the con.

Parker-Heller is too juicy for a jurist to ignore, and being a betting man, I wager come this week the Supremes will add this case to their 2008 docket.

Glenn Reynolds, who knows more about law, the Supreme Court and the 2nd Amendment than I ever will, is taking my bet. In a recent email debate sponsored by the Federalist Society, he speculates that the Supremes will duck the issue because they cannot risk making the right to keep arms as equal to unenumerated rights:

I’m going to go out on a limb here and predict that the Supreme Court will deny certiorari on this case. I think that’s likely because of the difficult position the Court would be placed in if it failed to find an individual right to arms under the Second Amendment. … The decision would have far-reaching effects, particularly in the event of a reversal. Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker . . . That’s a comparison between the Court’s handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. “So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?” The Court’s jurisprudence of unenumerated rights (with which I’m largely in agreement, by the way) would make it politically very difficult for the Court to eviscerate a clearly enumerated right to which many Americans attach great importance. At the same time, I don’t think the Court is willing to affirm in Parker. If I’m right, a denial of certioriari is the only way for the Court to avoid a very difficult situation.

Interesting times.

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