The Originalist's dilemma

Justice Scalia has a fallacy that the Constitution must be interpreted within its original meaning, yet he must admit that he should be incredibly incredibly (yes, I mean to say that twice) wary about overturning laws made by elected officials if he is going to do that.

Why?

This power is not expressly granted in the Constitution.

In fact, as I have pointed out many times before, this power comes from the case of Marbury v. Madison, which also said: It cannot be presumed that any clause in the Constitution is intended to be without effect.

So, should he be very wary about declaring laws unconstitutional since that is not a power which is expressly granted by the constitution? 

Additionally, since he went against Marbury once to the detriment of public safety in the Heller decision, should he admit that decision committed the grossest of errors in his political philosophy?

In fact, if anything the Heller decision totally contradicts his claimed belief in that the document should be interpreted as originally intended.  After all, the Second Amendment was implemented by the Militia Act of 1792--not the guns for criminals acts.

Scalia is not as clever as he would like to paint himself as he has painted himself into an ideological corner which those cleverer than he is can laugh at his folly.  The ultimate farce is that he is claiming powers which have not been granted to him by the document he claims to believe in.

Quote of the day

If it ain't in writing, it don't legally exist:

The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)

I've said it before, but you don't listen to me.

Yeah, you know more about the law than I do...

Anyway, this comes from Andrew F. Branca: somebody I would definitely describe as being pro-gun, but some of you have problems with Andy Raymond being "pro-gun".

Here’s some breaking news for you “OCIYF!” people:

YOU HAVE ABSOLUTELY NO SECOND AMENDMENT RIGHT TO CARRY A FIREARM INTO A PRIVATELY OWNED BUSINESS.

None. Zero. Zilch. Zip.

The Second Amendment forbids the Federal government—and since McDonald also the individual state governments—from infringing on the right of the people to keep and bear arms. Key word: government.

The Second Amendment does nothing whatever to constrain the rights of private property owners to determine for themselves whether to allow the carry of guns—concealed or open—on their property.
To put it even more simply, when you are on someone else’s property you are there as an invited guest. You stay at their pleasure, and under their rules, rules that only they are entitled to define. Make your host unhappy for any reason whatever and they are entirely within their rights to order you to leave. Refuse to comply and you’ve become a criminal guilty of trespass.

Got that:  The Constitution and Bill of Rights apply to government, not private action.

He also has some choice words for the Open Carry movement as well.

Question of the day

Q:  The question -- does federal law supersede or take precedent over state law?

A:  Federal law supersedes per Article VI:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

So, when some local yokel says they won't enforce federal law, they are being an Unconstitutionalist.

A couple of things to ponder...

William Rawle on the Domestic Violence Clause (Article 4, Section 4 of the US Constitution):

"Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted. The United States are therefore bound to carry it into effect whenever the occasion arises, and finding as we do, in the same clause, the engagement to protect each state against domestic violence, which can only be by the arms of the Union, we are assisted in a due construction of the means of enforcing the guaranty. If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it."

First off, he points out that

"Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted."

That reiterates the point I keep mentioning from Marbury v. Madison (It cannot be presumed that any clause in the constitution is intended to be without effect;–Marbury v. Madison, 5 U.S. 137 [1803]).  So, no matter how much people may want to wish away the Militia from the Second Amendment, it would only make that "mere surplusage -- is entirely without meaning -- if such is to be the construction". 

But I have also pointed out that Rawle said this about the Second Amendment:

In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable;yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion,to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

Rawle then goes on to point out: "The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed." The word "corollary" means "a proposition that follows from (and is often appended to) one already proved."

Again, that means that both clauses must be interpreted in relation to each other.

And if you want to take the next paragraph to mean personal arms:

"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 would point you to Article 1, Section 8, Clause 16, which gives congress the power to arm the militia.  It was that power that led to the Second Amendment being written: press-pubs.uchicago.edu/founders/tocs/a1_8_16.html

But, it isn't so much the Second Amendment pseudo-scholarship that I want to address here as much as the belief that there is some "right" to revolt against the US Government. We also add to the overwhelming evidence that that is silly, something called the Domestic Violence clause:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This is what Rawle is talking about when he says:

If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it.

So, if you are going to try and use obsolete and obscure clauses in the Constitution to try and justify your silly "gun rights" position keep in mind you have a few things working against you:  history (Shays' Rebellion) and the document itself.

Of course, you could try and say that the we should use the modern meaning of the term "Domestic Violence".

BTW, Rawle wasn't the only one to point out this section of the Constitution addressed insurrection.  Here's Joseph Story:

§ 1808. The want of a provison of this nature was felt, as a capital defect in the plan of the confederation, as it might in its consequences endanger, if not overthrow, the Union. Without a guaranty, the assistance to be derived from the national government in repelling domestic dangers,which might threaten the existence of the state constitutions,could not be demanded, as a right, from thenational government. Usurpation might raise its standard,and trample upon the liberties of the people, while the national government could legally do nothing more, than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law; while no succour could be constitutionally afforded by the Union to the friends and supporters ofthe government. But this is not all. The destruction of the national government itself, or of neighbouring states,might result from a successful rebellion in a single state.Who can determine, what would have been the issue, if the insurrection in Massachusetts, in 1787, had been successful,and the malecontents had been headed by a Caesar ora Cromwell? If a despotic or monarchical governmentwere established in one state, it would bring on the ruin ofthe whole republic. Montesquieu has acutely remarked,that confederated governments should be formed only between states, whose form of government is not only similar,but also republican.

As I like to say, Some people who say they are defending the Constitution need to bone up on what they are claiming to defend.

Instead, they seek to make themselves the "domestic dangers" the Constitution was written to prevent.

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)? But that also works the other way, How can you like Heller-McDonald, but not Roe v. Wade?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman’s personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want “gun rights” and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves “pro-life”, yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory “gun right”.

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia’s dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the “pro-life” nor the “pro-choice” points of view. The general principles of modern-day Judaism are that:

• The fetus has great value because it is potentially a human life. It gains “full human status at birth only.”
• Abortions are not permitted on the grounds of genetic imperfections of the fetus.
• Abortions are permitted to save the mother’s life or health.
• With the exception of some Orthodox authorities, Judaism supports abortion access for women.
• ”…each case must be decided individually by a rabbi well-versed in Jewish law.”

Islam allows for abortion in cases where the mother’s life is threatened.

Sikhism has no problem with abortion.

Additionally, while the “right to an abortion” may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.