Wednesday, January 29, 2014

A couple of Supreme Court Justices on the Second Amendment

Let's start with Chief Justice Warren Burger, a Conservative who was Chief Justice from 1969 to 1986:

Of course, that was before the term "conservative" came to have the meaning along the lines of being out of touch with reality or some kind of idiot in US English.

Next, we have another long sitting Justice, William O. Douglas, who was on the court for 36 years and 209 days (1939–75) which is the longest tenure in the history of the Supreme Court.  He was on the court at the time US v. Miller was decided, but was not part of the panel that heard the case.

The quote is from Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Time magazine called Douglas "the most doctrinaire and committed civil libertarian ever to sit on the court".  Don't you think that such a person would come out for "gun rights" if such a concept actually existed?

Additionally, wouldn't his being on the Court when Miller was decided give him some sort of insight into the meaning of the decision?

And let's not forget the reference to Aymette v. State, 2 Humphreys 154 (Tenn. 1840) in Miller.  Aymetter says:

     In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured.  All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn.  They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.

     We think there is a manifest distinction.  In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all.  To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations.  The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether.  And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.

     But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army.  And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.

     To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides 
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms.  A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane.  So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.


  1. Note, Douglas didn't say anything about whether or not Miller was enrolled in the militia- something which you’ve twisted his statement to mean.

  2. How original Laci, this is only the tenth time you've rehashed Burger and his failed argument.

  3. Living in the past Laci.

  4. Laci, whatever you believe about past gun rulings, don't you have to acknowledge that an individual right is now settled law? If it's true about Obamacare, it's true about Heller and McDonald.

  5. An interesting set of priorities.

    " 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."

    "Ultimately, he believed that a judge's role was "not neutral." "The Constitution is not neutral. It was designed to take the government off the backs of the people..."

    "In 1944 Douglas voted with the majority to uphold Japanese wartime internment, in Korematsu v. United States, but over the course of his career he grew to become a leading advocate of individual rights. Suspicious of majority rule as it related to social and moral questions, he frequently expressed concern at forced conformity with "the Establishment" in his opinions."

  6. If an accepted interpretation of a Constitutional amendment suddenly changes after so long, it is totally up for debate and scrutiny. One court decision against centuries of accepted court decisions finding a different interpretation, should be challenged, vigorously. These sudden changes are usually due to politics, not an intellectual interpretation of legal documents.

    1. "One court decision against centuries of accepted court decisions finding a different interpretation, should be challenged, vigorously. These sudden changes are usually due to politics, not an intellectual interpretation of legal documents."

      You mean that just because we've been doing it for a long time makes it more right? Would that also justify continued defiance and challenge to Roe V Wade? Or Brown vs Board of Education?
      Mike is counting on the political aspect of the court to eventually result in a reversing of Heller and McDonald. Is that a good thing?

    2. The Court in fact worked hard not to answer the question of the nature of the Second Amendment. Heller forced the issue, since Heller himself was not a criminal seeking to get out of a conviction, and McDonald derives from Heller. Once a right is recognized, the Fourteenth Amendment pretty much guarantees that the right applies to all and everywhere.

    3. Very True Greg. In fact, it will be interesting to see what happens in Heller II.

    4. Not at all and your emotional response does not reflect my opinions.
      I meant what I said. It should be debated, challenged. Roe/Wade has been debated and challenged since its passing. Some are still trying to overturn it, even though the Chief of the Supreme Court has said it is precedent and decided law, that he will not revisit. In fact the opposition is counting on a change by the Court to overturn it. It's law, which does not make it morally right, or wrong. Slavery was protected by the law also and Lincoln thought it's immorality deserved a full war. That's politics, not the law accepting slavery.

    5. Emotional response? What is that supposed to mean? Sarge and I are using facts and legal reasoning here.

    6. "You mean that just because we've been doing it for a long time makes it more right?"

      That's a statement of emotion. It does not reflect what the law is.

    7. No, Anonymous, Sarge was asking if you're committing the fallacy of the faulty appeal to tradition.

    8. He's asking a moral question of right and wrong.

    9. "You mean that just because we've been doing it for a long time makes it more right?"

      That's a question of right , or wrong, a moral question.
      For the lying criminal coward who doesn't know what morals are and promotes circumventing the law.


  7. "In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions. However, Burger abandoned Roe v. Wade by the time of Thornburgh v. American College of Obstetricians and Gynecologists."

    "Burger was opposed to gay rights as he wrote a famous concurring opinion in the Court's 1986 decision upholding a Georgia law criminalizing sodomy (Bowers v. Hardwick), in which Burger purported to marshal historical evidence that laws criminalizing homosexuality were of ancient vintage. "

    1. You seem to confuse the law with morality. Just because a law says it's OK doesn't mean it's morally correct.

    2. "Just because a law says it's OK doesn't mean it's morally correct."

      I couldn't agree with you more Anon. In fact, there are a number of Sheriffs that feel the way about the Second Amendment.

    3. So because a sheriff disagrees with a law, he has no obligation to enforce that law?

    4. A sheriff is not required to enforce all laws. For example, Sheriff John B. Cooke of Weld County Colorado has been in the news lately due to his stated refusal to enforce two recently passed gun laws.
      But if you look at the oath of office he swore, there is nothing in there that requires him to enforce laws,

      "As required by the Colorado Constitution, Sheriffs take an Oath of Office. Sheriff Cooke’s oath was as follows:
      “I, John B. Cooke, do solemnly swear that I will support the Constitution of the United States, the Constitution of the State of Colorado, the Home Rule Charter for Weld County, Colorado; the Ordinances of Weld County, Colorado, and that I will faithfully perform the duties of the Office of County Sheriff, of the County of Weld, State of Colorado, upon which I enter.”
      This oath did not require Sheriff Cooke to enforce all state statutes."

      Its sort of an assumption, just like some assume that the police are required to protect you. If the voters disapprove of his policies, their remedy is to vote him out of office at the next election. Unless of course, he does something illegal.
      And if a Sheriff feels that a law violates the constitution, it would violate his or her oath to enforce it.

    5. A country full of Mark Kesslers, great.

    6. Kessler was a police chief and therefor had to go through a termination process likely driven by a union. A sheriff also has a termination process called an election.

    7. So the spirit of the law no longer exist, just lawyer up and play word games while idiotic events continue.

    8. This is what you call the downside of government employee unions. A set procedure is implemented in the area of terminations and grievances which often involves arbitration and there will be times when things don't work as intended. The same occurs with enacted legislation also.
      The courts have even found that law enforcement has no legal responsibility to protect individuals. A sheriff is an elected position and enjoys protections given by law.
      You can be assured that if there was a legal requirement to enforce laws, the Sates Attorney Generals would have not wasted time in using the courts to remedy these law enforcement leaders' defiance.

    9. Yep, a country full of Mark Kesslers and his type of irresponsible thinking.

  8. I like "one of the greatest pieces of fraud." I call it "bastardized."