Thursday, August 15, 2013

"The Supreme Court has made itis decision; now let them enforce it!"

The quote I use to open this comes from what President Andrew Jackson is supposed to have said in response to the decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): "John Marshall has made his decision; now let him enforce it!"

There is no constitutional provision for judicial review of laws by the US Supreme Court, neither is there a constitutional provision which allows the court to enforce its "decisions". I asked the question of how does one deal with a rogue court which goes beyond its powers when Scalia judicially amended the Constitution with his Heller decision.  He totally violated the rule of law and gave sanction to a version of the Second Amendment which is without historic or legal basis:
In the second article, it is declared, that a well regulatedmilitia is necessary to the security of a free state; a propositionfrom which few will dissent...The corollary, from the first position, is, that the right ofthe people to keep and bear arms shall not be infringed.
I also give this interpretation of the Miller case from a Justice who was on the court at the time of Miller, William O. Douglas, dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) :
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.
Of course, the real goal of libertarians is the destruction of government and the rule of law--even if the "law" we follow is one of custom rather than actual legislated (or constitutionally provided) law.

They would be happy to see the court system abolished.

Especially if that happens from within.  Thank you, Justice Scalia.


  1. And yet you didn't quote the next paragraph.

    "The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

    I wonder why you would have left that part out?

    1. So Laci pulled that trick of quoting only part of what is said, huh? Interesting. Usually, he quotes the part that damages his point and then pretends that it actually agrees with him.

  2. Another tissue of nonsense from Laci. It's well established that the courts rule on the constitutionality of laws. He have heard of Marbury v. Madison, right? Is he also aware that the dissent is called a dissent precisely because it's not the ruling? But, of course, he goes on to set up a strawman, so it's no surprise that the reasoning of the whole article is a mess.

  3. So pistols are not needed for a militia, but assault rifles would be right? Does that mean it would be unconstitutional to ban the sale of assault rifles because of their use as military weapons and therefore needed for a well regulated militia?

  4. Laci is at it again, bringing his flawed and indefensible interpretations of the Second Amendment, stretching this dissent (non-governing opinion) to try and reshape the Miller decision since even Miller does not truly help his position.

    However, perhaps the most wonderful part of his post is his quoting of Andrew Jackson giving the middle finger to the Supreme Court on a case where the court upheld the sovereignty of the Indian Nations. Good ole Trail of Tears Andy Jackson.

    Nice one Laci. You and Andy make perfect bedfellows.

  5. Laci,
    My guess there are a few other examples out there of the SCOTUS in someone's view has created a right out of thin air. The solution to this is of course either get the court to reverse itself, or amend the constitution.

    1. Not if you're Laci. If you're the pooch, you try to earn yourself a $20 bill award.

  6. "A well regulated Militia, being necessary to the security of a free State , the right of the people to keep and bear Arms, shall not be infringed."

    That little, red comma caused the Supreme Court to strike down D.C.'s ban on handguns, the country's strictest gun control law to date.

    Before the Supreme Court heard the case, the D.C. circuit court of appeals nixed the ban, too. "According to the court, the second comma divides the amendment into two clauses: one 'prefatory' and the other 'operative.' On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about 'the right of the people ... shall not be infringed."

    1. We've been over this ad nauseum with Laci. He continually insists, despite logic and precedent, that the prefatory clause somehow limits that right only to the militia. It's really not worth arguing with him--especially since he usually refuses to even return to argue.

      Instead, it's better to note his endorsement of Andrew Jackson's defiance of the Court on an matter dealing with the sovereignty of native tribes which he later shipped out west.

    2. My point is that Laci only uses the supreme court example. The thing is there are other courts that know how to properly read the constitution, like the DC district court for example.

      I feel sorry for anyone he represents. And I asked him a question three times even tho I know he cant answer it on his wishes to arm the Trayvons of this country.

    3. And the point you were making is a good one. I didn't intend to diminish that.

      As for your unaswered questions to Laci, and his lack of answering your comment here, Laci is a hit and runner on this blog like Japete, Baldr, and Dog Gone. We did goad Laci into responding a while back (may have been before you became a regular), though all he did was scream at us about how our questions were supposedly too incoherent to answer, posted a bunch of facebook quizzes to show how smart he was, and had a complete meltdown in which he posted three times in 10 minutes just to tell me, in different ways, how I wasn't worth his time.

      Best entertainment in months.

      I'd worry for his clients too, but my guess is that he has a totally different personality that he shows in court, and he probably uses better, more established arguments there, and saves all of the out of context quotes and deliberate misinterpretations for his online "activism."

    4. Yeah I read his melt down, I have been here for several years. Sometimes I have time to post, sometimes I don't but read instead. Laci and I have had some of our own animated discussions ourselves so I am no stranger to him. As well as doggone, Baldr and others.

      But Laci needs to be careful of his "activism", it can turn around and bite him in the ass if it makes it into the court room on one of his cases. The judge and bar association might take a dim view on his activities and law practice. It establishes a point that his clients may not be receiving the services/representation they paid for or their best interests served. If a client of his finds out about his outside activities he may get into hot water. Specifically if his clients case hinges on the constitutionality of an argument and proper interpretation of the constitution is required to win for his client.

    5. I only came here at the end of last year, so I guess I didn't see some of your past activity.

      As for your second paragraph, it's interesting speculation, but it's a more tenuous case than I'd want to make since his activism is just a bunch of writing on blogs that do not pretend to be legal blogs or offering legal advice.

      I'd be more interested to know if guns are involved in many of the defense cases he handles, and if his court arguments are the exact opposite of what he offers here. It would be funny if he had argued the pro-gun rights interpretation of Miller (which makes a hell of a lot more sense than his dreck).

    6. Tennessean, I'd be curious to hear your opinion about Laci's work as an attorney. His real name is easy to find. Is it possible to look up cases by the name of the lawyer involved?

    7. I've never tried looking up a particular attorney's cases, so I can't speak to how easy it is or isn't to do that, and I'd guess that it varies from county to county depending on their filing systems.

      Honestly, I don't think it would be a worthwhile endeavor. Even if you pulled every transcript and every file for every case, you still wouldn't have the full picture of his abilities because you still wouldn't know everything he knew when making decisions.

      His legal interpretations on here are pretty abysmal, but I'd guess that Laci is a cagy pooch and probably changes his tune in court, offering logical and well put together arguments...unlike here.

    8. He would have to. If he acted in court the way he does here, he'd be getting regular charges of contempt.

  7. Once again, Laci, I challenge you to answer this simple question: the Miller decision upheld the law because they said there was no evidence that a sawed-off shotgun has a relationship to the preservation or efficiency of a well-regulated militia. So what if the gun in question had. What if instead of a sawed-off shotgun, the gun were a Thompson sub machine gun or a Springfield 1917?

  8. That certainly does not mean there are no limitations on the 2nd amendment, as the Supreme Court has ruled over two centuries. Both the Fed and the States can set limitations on firearms and ammunition.
    I wouldn't laugh at Laci too fast. That interpretation of the 2nd amendment is well accepted and getting more popular. All it would take is a liberal turn on the Supreme Court.

    1. All it WILL take is a liberal turn on the Supreme Court. This will probably happen during Hillary's eight years.

      No wonder the gun nuts are so panicky.

    2. Yeah, after eight years of Obama, this country will accept Hillary Clinton. What a bizarre fantasy life you have, Mikeb.

    3. Jim,

      Laci's interpretations are a bit more extreme than the Heller dissent's discussion of collective rights and reasonable restrictions on the right. According to Laci, there is NO right and it is totally permissible for the government to ban all guns.

      As for the historic interpretations, they are quite different from the way Laci represents them. TS's comment succinctly sums up the reasoning given in Miller, for instance. In answer to his question, going by the court's reasoning, they would have upheld the ban had Miller's gun been a Thompson since it was banned under the NFA which they were upholding and it had not yet been used as a standard military arm. Had the act banned the Springfield 1917 and had that rifle been the one at issue, their rationale would have required them to overturn the conviction and the ban on that gun.

      Would they have done so? If they were consistent with their stated rationale, yes. Otherwise they would have needed to give other reasoning.

      However, according to Laci's bizzare interpretation of the case, a ban on the Springfield would have been JUST as legitimate as the ban on the Short Barreled Shotgun and Thompson.

      The interesting thing from a historical perspective is that a few years after the Miller decision, in WW2, machine guns and submachineguns became common military arms. Under the Miller rationale, this should have invalidated the machinegun section of the NFA, but the next time the law came up the court gave a modified rationale rather than a straight up citation of Miller.

    4. It's been shown time and again, the Supreme Court does not follow past precedent and changes their position on an issue citing new thinking, stating new interpretation of law.