Article 6, Clause 2 of the US Constitution states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Concept of Judicial review does not come from the Constitution, but originates from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.
Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".
According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.
Additionally Marbury states that:
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.The question is how does one deal with a decision from a Judge which departs from the text of the constitution and precedent--as happened in the Heller-McDonald decisions?
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Unfortunately, the Constitution is silent on this topic. Does one revert to prior settled law, which in this case is US v. Miller, 307 U. S. 174 (1939), which was a unanimous decision?
The problem is, Jim, that The Heller decision set some very bad precedents if you are truly aware of how the case progressed. It unsettled 70 years worth of law. Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.
Will a court ultimately see that the Heller decision is incorrect and that Stevens's dissent is the proper interpretation? After all Silberman overruled settled law in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), cert. denied, 128 S. Ct. 2994 (2008).
If anything, Marbury reinforces that the Rule of Law applied in the US:
"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."
The essential characteristics of the rule of law are:i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.
Heller violated the rule of law and other principles given for Judicial Review in Marbury.
Heller in and of itself is an unconstitutional decision since it is judicial legislation.
I am not wasting my time, and the more people like you tell me that I am wrong, the more I become resolved in my quest to make the truth known.
As one of my professors in law school told me:
"go out and make some law."