Cowboy Confessional

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.

Bookmark to:

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.

Bookmark to:

Things are about to get interesting in D.C., as if dodging bullets was not already the town’s primary pastime.

The U.S. Court of Appeals for the District of Columbia decided not to hear an appeal on the Parker case, a 2nd Amendment challenge to the absolute handgun ban in D.C. (well, almost absolute — certain reviled but well connected people appear to be immune from the law).  The denial of an en banc (i.e., the full court) hearing means that the city has only one choice left if they want to preserve the ban — to appeal the case to the Supreme Court.

Court speculators are as divided as the Supremes would likely be on the outcome.  Most court watchers believe that the Supremes would sustain the lower court ruling (i.e., kill the gun ban) by a 5-4 margin.  This is significant because if the Supremes thus anointed the 2nd Amendment as an individual right, it would be the foundations for widespread deconstruction of state and local gun control ordinances from coast to coast.

And this is why I doubt the city will appeal to the Supremes.

Elected henchmen in D.C. are widely Democrat, largely liberal, and collectively beyond comprehension.  By nature and affiliation they are politically connected, and specifically connected to dishonorable outfits like the Brady Campaign and the Violence Policy Center.  Neither of these organization wants the current court to decide the issue because the downside is too big to risk.

How can we know this?  One indication are their web sites.  Within an hour of the news breaking on the VA Tech massacre, both outfits had updated their home pages with veiled hints that the killings could have been stopped with more gun control.  Yet a full working day after the circuit court denied an en banc hearing, their home pages say nothing about their position on the appeal.  This is dirty laundry they prefer to keep indoors.

Which leads us back to D.C. Mayor Adrian Fenty, the man who will decide to appeal or not.  Like all politicians, Fenty has aspirations for higher office, which requires the support of friends.  If Sarah Brady and her hordes of developmentally disabled supporters apply pressure, and if that pressure is amplified by party loyalist from Diane Feinstein to Chuck Schumer, Fenty faces a big problem:  appeal against party will and lose the case, and he’ll be lucky not to be found floating downstream in the Potomac.  Abandon the appeal and he loses nothing except the local gun control issue, which may annoy some city residents, but is in the list of “forgivable” sins.

I don’t know Fenty personally, but surface reports position him as a man lacking stones large enough to forsake party and profit for principle, and I expect him to fold and cash in his chips on this particular gamble. It is better to annoy a town than a party and a country.

The cheerful upside for Fenty is the likelihood that he can, and will, turn this to his advantage.  In states that have liberalized and loosened their gun control laws, violent crime has gone down.  With the District being one of the most violent cities in America, Fenty has little to lose by allowing the ban to die.  If crime increases, he blames the courts and distant rednecks for the city’s ills, which is not far removed from his current talking points.  If crime goes down, he claims credit, hanging the results on inconsequential action he took.

If gambling were legal, I’d have an open $20 bet that this is as far as D.C. pushes the issue.

Bookmark to:

I had a moment to spelunk through the the dissenting opinion in Parker v. District of Columbia, whereby the local handgun ban was declared constitutionally void.  Justice Henderson, while rambling somewhat aimlessly in her missive, made the following footnote:

I have not overlooked the language in United States v. Verdugo-Urquidez … to the effect that “the people” as used in various of the first Ten Amendments refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” But just as the Tenth Amendment ties the rights reserved thereunder to “the people” of the individual “States,” thereby excluding “the people” of the District … … the Second Amendment similarly limits “the people” to those of the States …

Sanitized and simplified a bit, Justice Henderson claims that Constitutionally protected rights are null and void in the District of Columbia.

This is an amazing view.  Under this legal fiction the city council of D.C. could ban free speech, prevent lawful gatherings, padlock the presses at the Washington Post, arrest people without warrants, suspend jury trials, and more.

Fear such judicial thinking.  Anyone on the bench to whom the simple phrase “the people” could be so tortured is bound to rob you of your freedom.  But all for a good cause naturally. 

Bookmark to:

Insanity is an ugly thing, especially when packaged in pretty emails.

Last week there was an interesting case adjudicated in the D.C. Circuit court. The case was Parker vs. District of Columbia.  Aside from the fascinating aspects of the case, and how cleanly it played out in the D.C. Circuit unencumbered by state law issues, the best part was the utter panic this ruling installed in the Brady Campaign.

I was forwarded a fund-raising email in which the Bradys shouted shill about a decision by “activist judges.”  It is ironically comical to see members of the political left complain about what member of the political right did for years.

More to the point, I’m at a loss as to how anyone could perceive the decision to be “activist”.  Perhaps my strict constitutionalist stripes show, but when the majority opinion focused on what the term “the people” means in the broad scope of the Constitution, I fail to see where “activism” enters the discussion.  To wit, from the majority decision:

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments.  It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. … The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias….

One must be truly bound to their cause, or heavily medicated, to ignore the guiding Constitutional principle in a judicial ruling and thus view the enforcement of a clearly stated right to be judicial “activism”.

But I digress from the theme of today’s missive, that being the hilarity provided by Sarah Brady and company.  Their Chicken Little like message made some comical claims, which no doubt invigorated their irrational hordes (nothing like a little fear to get political blood pumping).  One such claim that caught my eye was:

… completely disregarded the democratically-expressed will of the people of the District of Columbia, depriving D.C. citizens of a strict handgun law enacted thirty years ago.

To Sarah’s way of thinking (if I may distort the term “thinking” to an unreasonable degree) the will of the people expressed in the Constitution is somehow subservient to the will of a city council filled with convicted crack smokers.  Any junior high civics student understands the principle of preemption, and will attest that a Constitutional right trumps a local legislation any day.  If not, the city council in whatever Hell Sarah now resides could legislate away her free speech rights (which I admit would be a tempting thing to do, but my firm belief in Constitutional protection forbids thinking seriously about it).

The Brady bugbear email contained enough historical inaccuracies and  theatrical statements that space does not allow reciting them all.  They claim all courts (aside from the 5th) have ruled against an individual right to bear arms (not true), and they scream that this decision will wipe away all local gun owning restrictions (unlikely).

Which brings up the obvious fakery of the Brady Campaign.  Collectively they claim to not be a gun banning organization.  In fact, their web site has this tidbit in the “About Us” section:

Brady believes that a safer America can be achieved without banning guns. Our stand is simple. We believe that law-abiding citizens should be able to buy and keep firearms. … Second, there are certain classes of weapons that should be out of bounds for private ownership. They include Saturday-night specials, which are used almost exclusively for crime, military-style assault weapons like Uzis and AK-47s, and .50-caliber sniper rifles, which serve no ordinary sporting purpose.

(emphasis mine)  Note the following:

• They say they are not about banning guns.
• Then they say they are about banning guns, just certain types.
• The types of guns they would ban do not include all handguns.
• Yet they wet themselves when a handgun ban is overturned.

Only a New York Times editor could not see through this charade.  And the fun has just begun.  The formerly great District of Columbia undoubtedly appeal for an en banc hearing, and failing that, it will head onto the Supremes. 

Hope Sarah raises lots of money.  They’ll need it.

Bookmark to: